No Easy Answers


Tuesday, April 18, 2006

Fitzgerald Motion for Clarification (CIPA) [Doc 85]

     Case 1:05-cr-00394-RBW           Document 85        Filed 04/17/2006       Page 1 of 18



                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


UNITED STATES OF AMERICA                      )
                                              )              CR. No. 05-394 (RBW)
               v.                             )
                                              )
I. LEWIS LIBBY,                               )
      also known as "Scooter Libby"           )


         MOTION FOR CLARIFICATION OF THE OPINION OF APRIL 5, 2006
         CONCERNING EX PARTE SUBMISSIONS UNDER CIPA SECTION 4,
          OR IN THE ALTERNATIVE, MOTION FOR RECONSIDERATION

       The UNITED STATES OF AMERICA, by PATRICK J. FITZGERALD, SPECIAL

COUNSEL, respectfully moves for clarification of this Court's Opinion of April 5, 2006 (the

Opinion), which sets forth a procedure for submitting filings under Section 4 of the Classified

Information Procedures Act (CIPA), 18 U.S.C. Appdx. III (2000).             Although the Opinion

provided a detailed analysis, out of an abundance of caution the government respectfully seeks

this clarification so that it does not misconstrue the Opinion and so that the government can

comply with the Court's intent. Of paramount importance to the government is its ability to

invoke, in limited situations, a procedure to present a statement or document ex parte to this

Court where the government believes the information is not discoverable and even the act of

disclosing the specific nature or existence of the information would risk a harm to national

security, a violation of grand jury secrecy, or a breach of some other rule of privilege or secrecy.

We believe that the Court's Opinion allows for the possibility of such a procedure under Federal

Rule of Criminal Procedure 16(d), but this motion seeks clarification with respect to that issue.

In the alternative, if the Opinion did not leave open that option, the government respectfully



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moves for reconsideration so that the procedure remains available in limited, appropriate

circumstances. In further support of this motion, the government states as follows.

                                       BACKGROUND

       February 27, 2006 Ruling on Ex Parte Rule 16 Filings

       On February 16, 2006, the government filed a consolidated response to the defendant's

Rule 16 and Brady motions to compel discovery that the defendant had filed by that date.

Government's Consolidated Response to Defense Motions to Compel Discovery (Docket No.

36). In support of the Consolidated Response, the government contemporaneously filed an

affidavit describing materials produced to, and withheld from, the defendant during discovery.

The affidavit was filed ex parte and under seal because it contained extensive references to grand

jury material, and described information relating to "innocent accused" persons who were

subjects of the grand jury investigation but not charged. See Consol. Resp. at 9 n.1, 11-14. After

the defendant questioned the need to file the entirety of the affidavit ex parte, on February 21,

2006, this Court allowed for some portions to remain ex parte but also ordered that the

government submit a redacted affidavit disclosing the portions of the affidavit that "discuss and

provide a description of the information and documents that have been provided to the defendant

by the Special Counsel." Order of 2/21/06 (Docket No. 38). On February 22, 2006, the Special

Counsel's redacted affidavit was provided to the defendant and the Court.

        On February 24, 2006, this Court held a status hearing in the case, and the defendant's

counsel complained during the hearing about the prior ex parte filing and the submission of

argument ex parte. 2/24/06 Tr. 39, 40. In considering the defendant's request, the Court

expressed its concern over ex parte filings, but also observed that the unattractive alternative



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would be for the government to make unilateral decisions that information was not discoverable

rather than err on the side of caution by seeking a ruling from the Court:

       I am always troubled by having to consider information ex parte. However, if the
       government is of the view that something is not discoverable which is what I understand
       their position is in reference to what they submitted that you are challenging, the only
       other option then is to, because it is a government obligation, is to again shut down the
       flow to me. Tell them not to do it. You make the call. Don't give it to me and,
       therefore, the decision that you make is final because Rule 16 is their obligation. If
       they're not going to give it to me, and they make it one of their own, I mean I'm happy to
       get it out of the picture. (2/24/06 Tr. 40).

                                               ***

       I think you know counsel obviously have to be circumspect in what is submitted to the
       court ex parte. But on the other hand, it seems to me that if I am going to play a role in
       making judgment calls where the government questions whether information is
       discoverable or not and they want to submit that to me for my evaluation[] and when we
       are talking about something that is foreign to the court that the government is obviously
       in a better position to explain what it is, [then] it seems to me it is appropriate for the
       government to do that, mindful of the obligation of trying to have an open
       proceeding . . . . (2/24/06 Tr. 42) (emphasis added).

                                               ***

       So I would obviously caution counsel to make sure that when things are submitted to me
       ex parte, that there is good cause to do that but I am not prepared to rule that the
       government can't in the future make such submissions to me. Otherwise, it seems to me
       I do put the case in the posture where the government is independently making its
       decision as to whether it has an obligation under Rule 16 or otherwise to produce and I
       guess that becomes final until the case ultimately would be reviewed on appeal and I
       don't want to proceed in that manner. So I understand your concerns but I would deny
       that request. (2/24/06 Tr. 43) (emphasis added).

The Court denied the defendant's request in a written order on February 27, 2006. Order of

2/27/06 (Docket No. 52).

       Opinion Regarding Ex Parte Filings under CIPA 4

       After the February 24 hearing, the defendant turned from Rule 16 ex parte filings to

CIPA § 4 filings, and moved to "bar ex parte submissions under CIPA § 4 without a


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particularized showing of exceptional circumstances."       Def.'s Mot. (Docket No. 51).        The

defendant sought a blanket order forbidding the United States from proceeding ex parte under

CIPA § 4 without first demonstrating particularized exceptional circumstances. Neither party

discussed an issue that seems central to the April 5, 2006 Opinion, that is, whether CIPA § 4

applies only to classified information that has already been determined to be discoverable.

Mem. Op. at 6.

       Specifically, the Opinion reasoned that, "[b]y its terms, Section 4 applies only after it has

been determined that documents are discoverable" or after "the government decides to produce

information contained in classified documents even though it is under no legal obligation to

produce the information." Mem. Op. at 6. Thus, the Opinion continued, CIPA § 4 applies only

after the information has been deemed discoverable and the threshold question of materiality has

been made in favor of disclosure. Id. The Opinion stated that "questions of materiality must be

litigated in a separate adversarial setting, just as the Court did when addressing the defendant's

first two motions to compel." Id. With regard to CIPA § 4 filings, the Opinion (and the

accompanying order) directed that the government not present materiality arguments in ex parte

Section 4 filings and required that the government file an affidavit with any ex parte Section 4

filing justifying the ex parte procedure, but otherwise declined to prohibit ex parte Section 4

filings or to prohibit the government from including written justifications for proposed

substitutions or redactions. Id. at 7, 10-11. The Opinion also authorized the defendant to present

an ex parte affidavit detailing his defense for the purpose of assisting the Court in evaluating the

propriety of a proposed redaction or substitution. Id. at 11-12.




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                                         ARGUMENT

I.     Rule 16 Authorizes the Government To Proceed Ex Parte Where Appropriate.

       When the government seeks the court's authority to withhold classified information from

discovery, it typically moves ex parte pursuant to CIPA § 4 and Rule 16(d)(1) of the Federal

Rules of Criminal Procedure. While the government respectfully disagrees with the Opinion's

view that CIPA § 4 is not triggered until classified information is deemed discoverable, we seek

to clarify that there remains a mechanism by which to present to the Court ex parte the issue of

whether information is discoverable in the first instance.      In particular, where the act of

disclosing the specific nature or even the existence of information would present a risk of harm

to national security, violate grand jury secrecy, or would breach some other rule of privilege or

secrecy, and where the government does not believe the information is discoverable, it is

extremely important to the government that it be able to seek the Court's ruling on

discoverability rather than make the unilateral decision that the information is not discoverable.

As the Court recognized at the February 24, 2006 motions hearing, to cut off the government's

ability to present the threshold discoverability question to the Court would compel the

government to choose between two unattractive choices: either disclose to the defendant

sufficient details about the information to hold discoverability arguments "in an adversarial

setting" and thereby incur the very harms that the government seeks to avoid, or instead avoid

those harms by withholding the nature and existence of the classified information from the Court

and the defendant and suffer the consequences should this unilateral decision later be found to be

in error. See 2/24/06 Tr. 40 ("the only other option then is to, because it is a government

obligation, is to again shut down the flow to me. . . . Don't give it to me and, therefore, the

decision that you make is final because Rule 16 is their obligation); id. at 42 ("if I am going to

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play a role in making judgment calls where the government questions whether information is

discoverable or not and they want to submit that to me for my evaluations and when we are

talking about something that is foreign to the court that the government is obviously in a better

position to explain what it is, [then] it seems to me it is appropriate for the government to do

that"); id. at 43 ("Otherwise, it seems to me I do put the case in the posture where the

government is independently making its decision as to whether it has an obligation under Rule

16 or otherwise to produce and I guess that becomes final").

       To avoid misconstruing the Court's order, the government wishes to clarify that the

Court's Opinion and Order of April 5, 2006 leave open the possibility, in the limited

circumstances described above, of an ex parte presentation under Federal Rule of Criminal

Procedure 16(d)(1) to determine the discoverability of information in the first instance. Rule

16(d)(1) expressly authorizes the Court to permit the government to show "good cause" for

denying discovery or inspection, or for granting other appropriate relief, by an ex parte written

statement of reasons:

       Protective and Modifying Orders. At any time the court may, for good cause,
       deny, restrict, or defer discovery or inspection, or grant other appropriate relief.
       The court may permit a party to show good cause by a written statement that the
       court will inspect ex parte. If relief is granted, the court must preserve the entire
       text of the party's statement under seal.

Fed. R. Crim. P. 16(d)(1) (emphases added). In light of this explicit authorization to present an

ex parte written statement of reasons to show good cause, courts have repeatedly evaluated the

discoverability of information based on the government's ex parte presentation under Rule 16(d)

where the defendant does not know the specific nature of the evidence proposed to be withheld.

E.g., United States v. Carmichael, 232 F.3d 510, 517-18 (6th Cir. 2000) (no error where

prosecutor informed the court ex parte that a cooperating witness had been intercepted in an

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ongoing wiretap); United States v. Felt, 491 F.Supp. 179, 184 (D.D.C. 1979) (adopting, pursuant

to Rule 16(d)(1), ex parte procedure to evaluate relevancy and materiality of classified

documents, and to determine whether documents contained Brady information); United States v.

Pelton, 578 F.2d 701, 706 (8th Cir. 1978) (describing procedure in which district court received

an ex parte presentation by the government under Rule 16(d)(1) to determine if recordings

contained exculpatory information); United States v. Lamont, 565 F.2d 212, 219 (2d Cir. 1977)

(describing procedure in which district court examined an ex parte application by the

government under Rule 16(d)(1) "in evaluating the possible usefulness" of an exhibit's

contents); see also United States v. Gurolla, 333 F.3d 944, 951 (9th Cir. 2003) (government's ex

parte submission under both CIPA § 4 and Rule 16 reviewed for materiality); United States v.

Yunis, 867 F.2d 617, 619 (D.C. Cir. 1989) (same). In short, there is nothing unusual about

invoking Rule 16(d)(1) to permit an ex parte government submission discussing whether

information is even discoverable in the first instance.1

       One hypothetical example that illustrates the propriety of such an ex parte presentation

was offered at the February 24, 2006 motions hearing in which the Court denied the defendant's

request to bar future ex parte Rule 16 filings. See 2/24/06 Tr. 41. It is not uncommon for the

government to have intercepted the communications of a defendant in more than one wiretap

investigation, but the investigations are separate and the intercepted calls in one are not

necessarily relevant to the other.     The government could, but would rather not, make the


       1
           There may well be instances when the Court does not need a written statement because no
argument about discoverability is necessary. These situations may arise, for example, if the Court
is intimately familiar with the material the government seeks to withhold, or the material is
obviously irrelevant. In many situations, however, the government can provide helpful argument
to the court regarding discoverability. The government's present motion for clarification is aimed
at this latter situation.

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unilateral decision that the recorded statements of the defendant in the still-covert investigation

are not relevant, Fed. R. Crim. P. 16(a)(1)(B), to the defendant's prosecution arising from the

other investigation. If the government were not able to offer the Court an ex parte presentation

in which the government discussed the discoverability of the statements recorded in the covert

investigation, then the government would have to disclose the nature of the information it sought

                                                                                                    See
to withhold, thus risking the disclosure of the ongoing and still-covert investigation.

Carmichael, 232 F.3d at 517-18.

       Ultimately, what the government seeks is to clarify that it is not precluded from making

ex parte arguments about the discoverability of information in those situations where disclosing

the information's specific nature or existence would risk a harm to national security, a violation

of grand jury secrecy, or a breach of some other rule of privilege or secrecy. The authorization

to proceed this way is grounded in Rule 16(d)(1), prior cases applying the rule, and this Court's

ruling from the February 24, 2006 motions hearing. The availability of such a procedure is

critical,2 though the government would invoke it only in limited circumstances. The government

of course will be cautious in invoking this type of ex parte presentation, see Mem. Op. at 6 n.7

(noting that the government has not attempted to make materiality arguments in its § 4 filing in

this case), and would certainly include in any such presentation a detailed explanation to the




       2
         The availability of such a procedure is critical even where the defendant was a former
national security official and defense counsel have security clearances: the entire purpose of the
classification system is to keep to a bare minimum the number of persons who know the information
so as to prevent intentional, reckless, or even inadvertent disclosure. E.g., Felt, 491 F. Supp. at 183-
84 (adopting ex parte procedure even though defendants argued that they were former FBI officials
who had previously viewed much of the requested material); United States v. Kampiles, 609 F.2d
1233, 1248 (7th Cir. 1979) (approving ex parte procedure even though defendant was a former CIA
employee).

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Court why the government believes it must proceed ex parte, thus making it possible for the

Court to determine whether the government is justified in proceeding ex parte.

II.    If the Opinion Was Intended to Preclude All Ex Parte Argument Regarding
       Discoverability, Then the Government Moves for Reconsideration.

       If the government has misread the Opinion, and it indeed precludes all ex parte argument

concerning the discoverability of information, then the government respectfully seeks

reconsideration. According to such a reading, issues of materiality under CIPA must be litigated

in a separate adversarial proceeding, in advance of submitting classified information to the Court

under CIPA § 4. That interpretation of CIPA § 4 would reflect an unnecessarily restrictive

reading of the text of CIPA § 4; would be at odds with the legislative history and purpose of the

statute; and would conflict with long-standing precedent and established national practice.

       Statutory Text

       To be sure, it has previously gone unnoticed in other cases that a portion of the text of

CIPA § 4 could justify reading that section to apply only after the documents at issue are deemed

discoverable. As the Opinion explains, § 4 does speak in terms of "delet[ing]" information from

documents "to be made available to the defendant through discovery." Mem. Op. at 6.

       However, we respectfully disagree with an interpretation of CIPA § 4 that would

preclude all ex parte argument concerning the discoverability of classified information. Section

4 is entitled "Discovery of classified information by defendants." The text does not specifically

suggest the necessity of a bifurcated proceeding under which questions of discoverability under

Rule 16 must be resolved in an adversarial setting and in advance of invoking CIPA § 4. Indeed,

the statute expressly permits the government to request the court's approval to "delete" classified

information from discovery to be made available to the defense, which is another way of


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denying discovery altogether. Furthermore, it makes better sense to read CIPA § 4 to cover

discoverability in the first instance because, with regard to many items of classified information,

it would be difficult for a court to entertain argument from the defense on the question of the

materiality of the information in dispute without compromising that very information if its

specific nature is disclosed to the defendant.        The deletion of classified information from

discovery, as contemplated by CIPA § 4, is almost always intertwined with the materiality of the

information. See, e.g., United States v. Rezaq, 134 F.3d 1121, 1142 (D.C. Cir. 1998) (stating that

"[t]he district court's substitution decisions turned on the relevance of the facts contained in the

discoverable documents"). Unless the court hears from the government, which has the initial

responsibility to protect classified information and upon whom the discovery obligation rests, the

court will have little or no basis other than the classified information itself on which to predicate

its discovery ruling. The practical, unintended effect of such a construction of CIPA § 4,

therefore, would be to often deprive the Court of a detailed basis on which to make an informed

decision.

       In addition, interpreting CIPA § 4 so that its protections do not apply to the threshold

question of discoverability but do apply to the proposed deletion of discovery would create a

situation that Congress did not likely intend.        The government would not have Section 4

protections where it was questionable that the information was discoverable at all, and yet could

invoke Section 4 when the information was discoverable (that is, relevant and material) but the

government sought to delete the information from discovery. This unusual result of precluding

threshold discoverability arguments from Section 4 does not comport with the intent of CIPA.




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       The Legislative History Supports that Congress Intended for the Government to
       Submit Materiality Arguments Ex Parte Under CIPA Section 4

       CIPA establishes a comprehensive roadmap for resolving issues concerning the

disclosure of classified information at all stages of litigation. See United States v. O'Hara, 301

F.3d 563, 568 (7th Cir. 2002) ("CIPA's plain terms evidence Congress's intent to protect

classified information from unnecessary disclosure at any stage of a criminal trial. Any other

interpretation would be wholly inconsistent with and threaten to undermine CIPA's fundamental

purpose"). The purpose of CIPA is to permit the government in advance of trial to assess the

costs of going forward with the prosecution as measured by the possible disclosure of classified

information. See United States v. Collins, 720 F.2d 1195, 1197 (11th Cir. 1983) (CIPA's

"purpose appears to be straightforward and clear. It is to provide procedures under which the

government may be made aware, prior to trial, of the classified information, if any, which will be

compromised by the prosecution.").

       It is not surprising, therefore, that the legislative history of CIPA makes clear that

Congress did not intend to preclude the government from making ex parte materiality arguments

during the Section 4 process, and the legislative history does not express any intent to render

CIPA less protective than Rule 16. Rather, Section 4 was intended to incorporate, and add to,

the widely used procedures of Rule 16(d)(1), which have been interpreted to allow the

government to file ex parte submissions regarding discoverability. When CIPA was under

consideration by Congress in 1980, the Senate and the House of Representatives conferred on

the bill and chose to adopt the Senate's version of Section 4. See H.R. Conf. Rep. 1436, 96th

Cong., 2d Sess., reprinted in 1980 U.S. Code & Cong. News 4307, 4308. The legislative history

of the Senate version shows that CIPA § 4 was intended to incorporate the procedures of Rule


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16(d)(1). As the Senate Judiciary Committee Report on CIPA states: "[w]hen pertaining to

discovery materials, this provision [Section 4] should be viewed as clarifying the court's powers

under Federal Rule of Criminal Procedure 16(d)(1)." S. Rep. 823, 96th Cong., 2d Sess. 6,

reprinted in 1980 U.S. Code & Cong. News 4299-4300. Congress adopted Section 4 because it

believed that courts had been "reluctant to use their authority" under Rule 16 to deny, restrict, or

                                                       Id. Thus, CIPA Section 4 was intended to
defer discovery for national security reasons.

"clarify" and confirm the authority of district courts under Rule 16 by creating a procedural

mechanism to authorize deletions from classified documents, the substitution of unclassified

summaries or the admission of relevant facts ­ something Rule 16(d)(1) did not explicitly

address. Additionally, it is just as important, if not more so, to have the protections of CIPA

available to the government when litigating the question of discoverability of classified

information in the first instance than it is when litigating subsequent questions such as the

adequacy of substitutions. See CIPA § 7(a) (providing for government right of interlocutory

appeal), § 7(b) (requiring delay in trial until after prompt disposition of interlocutory appeal).

        Given that Congress intended CIPA § 4 to incorporate and confirm the authority of Rule

16(d)(1), it is not surprising that, aside from the power to authorize deletions, substitutions and

summaries, that section generally tracks the structure of Rule 16(d)(1). Like Rule 16(d)(1)'s

requirement of "good cause," CIPA § 4 requires a "sufficient showing" before discovery can be

restricted.   In addition, both Section 4 and Rule 16(d)(1) allow the court to permit the

government to file a "written statement" that the court will review ex parte. CIPA § 4 adopted

Rule 16(d)(1)'s sufficient showing requirement and written statement because Congress

envisioned that materiality determinations would be made under § 4 in the same manner as they

had been made under Rule 16(d)(1).

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       Likewise, the District of Columbia Circuit has explained that CIPA § 4 should be read in

conjunction with its legislative history and the Federal Rules of Criminal Procedure. This is

because CIPA § 4 "contemplates an application of the general law of discovery in criminal cases

to the classified information area." United States v. Yunis, 867 F.2d 617, 621 (D.C. Cir. 1989).

As a result, "[i]t is against the background of general discovery rules and specific limitations

designed to protect classified information that the District Court and now this Court must

determine the availability" of classified information to the defendant. Id. at 622. It is clear that

this Court must interpret CIPA § 4 by looking at both the legislative history and the relevant

Rules of Criminal Procedure, namely, Rule 16(d)(1).

       Lastly, nothing in CIPA requires that there be a separate, adversarial litigation on

materiality outside the protections of CIPA. The absence of such a process ­ in an otherwise

comprehensive piece of legislation that details many specific procedures ­ strongly suggests that

Congress intended no such litigation to exist. In fact, adversarial litigation on materiality would

generally defeat the very purpose of CIPA. As explained previously, CIPA does not seek to

protect the disclosure of classified information only after materiality is litigated in an adversarial

setting between the parties.      Rather, CIPA seeks to protect the disclosure of classified

information at all stages of litigation. See O'Hara, 301 F.3d at 568. Typically a defendant could

not make pertinent materiality arguments to the Court without knowing at least some details

about the nature of the information at issue. Yet a disclosure of the specific nature or the

existence of classified information can be just as profound as a disclosure of the contents of the

information itself ­ which is the precise reason the government seeks to obtain the court's

approval to withhold the information in the first instance. See CIA v. Sims, 471 U.S. 159, 175

(1985) ("The government has a compelling interest in protecting both the secrecy of information

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important to our national security and the appearance of confidentiality so essential to the

effective operation of our foreign intelligence service."); Yunis, 867 F.2d at 623 (stating that

"much of the government's security interest in the conversation lies not so much in the contents

of the conversations, as in the time, place, and nature of the government's ability to intercept the

conversations at all"). Congress could not have intended to create such a loophole in this

important piece of legislation.

       Precedent Permits the Government to Address Issues of Materiality Ex Parte under
       CIPA § 4

       In addition to legislative history, the District of Columbia Circuit has assumed that CIPA

§ 4 permits the government to present materiality arguments ex parte in order to determine

                                                       In Rezaq, prior to trial, the government
whether classified information was discoverable.

"identified a number of arguably discoverable classified materials, and obtained permission from

the district court to file an ex parte, in camera motion for a protective order." 134 F.3d at 1142.

The district court ordered the government to explain, ex parte, why the documents were not

discoverable: "the district court ordered the United States to prepare an index listing the contents

of each document, whether it believed the document to be subject to discovery, and why. This

document, too, was submitted ex parte and in camera; the district court subjected this document

to detailed review, and prepared a list of the materials that it considered discoverable." Id. All

of this occurred under CIPA, and the court of appeals did not question the propriety of

proceeding under CIPA to determine discoverability. Id.; see also Yunis, 867 F.2d at 620-21,

624 (government made several ex parte filings under CIPA § 4 and Rule 16(d)(1), which were

also reviewed by the court of appeals).




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       Other courts have similarly held that it is proper for the government to make ex parte

materiality arguments under CIPA § 4. See United States v. Gurolla, 333 F.3d 944, 951 (9th Cir.

2003) (affirming district court's ex parte, in camera review of government's motion under CIPA

Section 4 to preclude discovery of classified documents because such documents "were not

material, and the government had no obligation to disclose them"); O'Hara, 301 F.3d at 567-68

(affirming district court's ex parte, in camera review of government's motion under CIPA

Section 4 in which classified information was deemed not material); United States v.

Klimavicius-Viloria, 144 F.3d 1249, 1261 (9th Cir. 1998) (holding that ex parte, in camera

filings and hearings under CIPA § 4 are appropriate "if the court has questions about the

confidential nature of the information or its relevancy"). For example, in United States v.

Pringle, 751 F.2d 419 (1st Cir. 1984), the defendants sought discovery of classified information.

The government moved for a protective order under CIPA Section 4 to preclude discovery. As

part of the motion, the government filed ex parte, in camera submissions to the district court.

The district court reviewed the submissions and held that the classified information was not

discoverable because it was not relevant or helpful to the defense. The First Circuit affirmed the

district court's decision, and stated that "[w]e have reviewed the classified information and agree

with the district court that `it was not relevant to the determination of the guilt or innocence of

the defendants, was not helpful to the defense and was not essential to a fair determination of the

cause.' The information was, therefore, properly excluded." 751 F.2d at 427-28 (citing Brady v.

Maryland, 373 U.S. 83 (1963) and Roviaro v. United States, 353 U.S. 53 (1957)).

       In the 25 years of CIPA's existence, the government has made, where appropriate,

materiality arguments in ex parte submissions filed with the court under CIPA § 4 and Rule

16(d). We have found no prior case where a court ruled that it was inappropriate for the

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government to make materiality arguments in an ex parte CIPA § 4 filing. If the Opinion was

intended to preclude any mechanism by which the government could proceed ex parte on the

issue of discoverability, the government respectfully requests this Court to reconsider the

Opinion given CIPA's legislative history, the case law allowing ex parte materiality arguments

by the government, and the longstanding practice of courts throughout the nation.

                                         CONCLUSION

       For the foregoing reasons, the government respectfully requests that this Court clarify

that the April 5, 2006 Opinion does not prohibit the government from making materiality

arguments in ex parte written submissions pursuant to Rule 16(d), particularly when the act of

disclosing the specific nature or existence of the information would risk a harm to national

security, a violation of grand jury secrecy, or a breach of some other rule of privilege or secrecy.

In the alternative, the government seeks reconsideration of the Opinion and Order.

                                                     Respectfully submitted,

                                                     PATRICK J. FITZGERALD
                                                     Special Counsel


                                                              /s /
                                                     Patrick J. Fitzgerald
                                                     219 South Dearborn Street
                                                     Chicago, Illinios 60604
                                                     (312) 353-5300

Date: April 17, 2006




                                                16

    Case 1:05-cr-00394-RBW            Document 85       Filed 04/17/2006      Page 17 of 18



                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA                     )
                                             )       CR. NO 05-394 (RBW)
               v.                            )
                                             )       UNDER SEAL
I. LEWIS LIBBY,                              )
      also known as "Scooter Libby"          )


                                            ORDER

       Upon consideration of the government's Motion for Clarification of the Opinion of April

5, 2006 Concerning Ex Parte Submissions Under CIPA Section 4, or in the Alternative, Motion

for Reconsideration, it is hereby ORDERED that:

       The government may file ex parte submissions in limited circumstances to seek a ruling

on discoverability, subject to the Court's review of whether such an ex parte procedure is

appropriate on a filing-by-filing basis.




Dated: __________________                            _________________________________
                                                     HON. REGGIE B. WALTON
                                                     UNITED STATES DISTRICT JUDGE

    Case 1:05-cr-00394-RBW           Document 85        Filed 04/17/2006       Page 18 of 18



                                CERTIFICATE OF SERVICE

       I, the undersigned, hereby certify that on this 17th day of April, 2006, I caused true and

correct copies of the foregoing motion and proposed order to be served on the following parties

by electronic mail:

                          William Jeffress, Esq.
                          Baker Botts
                          The Warner
                          1299 Pennsylvania Avenue, N.W.
                          Washington, DC 20004-2400
                          Facsimile: 202-585-1087

                          Theodore V. Wells, Esq.
                          Paul Weiss
                          1285 Avenue of the Americas
                          New York, NY 10019-6064
                          Facsimile: 212-373-2217

                          Joseph A. Tate, Esq.
                          Dechert LLP
                          4000 Bell Atlantic Tower
                          1717 Arch Street
                          Philadelphia, PA 19103-2793
                          Facsimile: 215-994-2222

                          John D. Cline, Esq.
                          Jones Day
                          555 California Street
                          San Francisco, CA 94104
                          Facsimile: 415-875-5700

                                                             Patrick J. Fitzgerald
                                                             Special Counsel
                                                             U.S. Department of Justice
                                                             1400 New York Ave., N.W.
                                                             Washington, D.C. 20530
                                                             202-514-1187

                                                             By:      /s/
                                                             Debra Riggs Bonamici
                                                             Deputy Special Counsel


                                                18

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