No Easy Answers
Sunday, June 04, 2006
Masked Gunmen Kill 21 Shiite Students
From
Masked Gunmen Kill 21 Shiite Students, an odd line.
Two gunmen on a motorcycle killed Muntaha Ali and her husband Helmi Yaseen in Basra, believed to be employees of a U.S. government agency
My general reaction to the story is to advocate concealed carry for Iraqis. Will they obtain the rights of a 2nd amendment?
My heart goes out to the families of the 21 Shiite Students.
Friday, June 02, 2006
Protective Order (Re: CIA referral) [Doc 113] and Schedule [Doc 114]
Case 1:05-cr-00394-RBW Document 113 Filed 06/02/2006 Page 1 of 2
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
UNITED STATES OF AMERICA, )
)
v. ) Criminal No. 05-394 (RBW)
)
I. LEWIS LIBBY, )
)
Defendant. )
____________________________________)
PROTECTIVE ORDER
Currently before the Court is the government's ex parte, in camera, motion for a
protective order pursuant to Section 4 of the Classified Information Procedures Act ("CIPA"), 18
U.S.C. App. 3, and Federal Rule of Criminal Procedure 16(d). The government's motion
requests the Court's approval for it to withhold discrete items of classified information from the
defendant, and to provide to the defense, as substitutes for several items of classified
information, summaries setting forth the relevant information contained in the classified
documents. For the following reasons, the government's motion is granted.
Upon careful review of the government's requests, its supporting declarations from the
intelligence community filed ex parte, in camera, and the original documents from which the
summaries were created, the Court finds that the documents and information identified in the
government's Section 4 CIPA filing are extremely sensitive and their disclosure could cause
serious if not grave damage to the national security of the United States. Moreover, the materials
withheld pursuant to this Order are not discoverable under Rule 16, nor exculpatory within the
meaning of Brady v. Maryland, 373 U.S. 83 (1963). In addition, the proposed unclassified
substitutions are more than sufficient to address any obligation the government might have to
produce the underlying classified documents and information to the defense. Accordingly, it is
Case 1:05-cr-00394-RBW Document 113 Filed 06/02/2006 Page 2 of 2
hereby this 2nd day of June, 2006,
ORDERED that the government may withhold from the defendant the specific
documents and information which are the basis of this motion subject to the following
limitations:
(1) The government shall provide to the defense by June 9, 2006, the proposed
substitution recounting Valerie Plame Wilson's employment history with the
Central Intelligence Agency from January 1, 2002, and thereafter.
(2) The government shall provide to the defense by June 9, 2006, the proposed
substitution discussing potential damage (if any) caused by the alleged disclosure
of Valerie Plame Wilson's affiliation with the Central Intelligence Agency.
(3) The government shall, as requested, provide to the defense by June 9, 2006, the
true names of three individuals whose identities were redacted from classified
documents previously made available to the defense, and shall identify for the
defense the specific documents and locations within those documents where those
names should be inserted.
IT IS FURTHER ORDERED that nothing in this Order shall be construed to limit the
government's discovery obligations as set forth in this Court's earlier Memorandum Opinion and
Order. United States v. Libby, ___ F. Supp. 2d ___, 2006 WL 574260 (D.D.C. Mar. 10, 2006);
June 2, 2006 Order.
SO ORDERED.1
______________________________
REGGIE B. WALTON
United States District Judge
1
The documents produced pursuant to this protective order are responsive to the final two disputes raised
in connection with the defendant's Motion to Compel Discovery of Rule 16 and Brady Material in the Possession of
Other Agencies filed on January 31, 2006. Those two requests sought (1) "[a]ny assessment done of the damage (if
any) caused by the disclosure of Valerie W ilson's status as a CIA employee" and (2) "[a]ll documents, regardless of
when created, relating to whether Valerie W ilson's status as a CIA employee, or any aspect of that status, was
classified at any time between M ay 6, 2003 and July 14, 2003." Because the government is voluntarily providing
documents responsive to these two requests through its Section 4 CIPA filing, the Court need not determine whether
their production is compelled by either Rule 16 or Brady. Accordingly, the Court concludes that these requests have
now been satisfied and the unresolved portions of the defendant's motion to compel are now moot.
Separate "unrelated" document below
Case 1:05-cr-00394-RBW Document 114 Filed 06/02/2006 Page 1 of 1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
UNITED STATES OF AMERICA, )
)
)
v. ) Criminal No. 05-394 (RBW)
)
I. LEWIS LIBBY, )
)
Defendant. )
____________________________________)
ORDER
In light of the production ordered by the Court in response to the discovery motions filed
by the defendant, and in order for the parties to appraise the Court of the status of the discovery
process, it is hereby this 2nd day of June, 2006,
ORDERED that the parties shall appear for a status conference on June 12, 2006, at 1:30
p.m., in Courtroom 5 at the E. Barrett Prettyman United States Courthouse, 333 Constitution
Avenue, N.W., Washington, D.C. 20001. It is further
ORDERED that the parties shall be prepared to discuss, among other things, (1) the
status of discovery; (2) whether additional motions (other than motions in limine) will be filed;
(3) whether the government will be asserting any claims of executive privilege; and (4) whether
the parties believe it is necessary to issue early returnable trial subpoenas to resolve anticipated
claims of testimonial privilege.
SO ORDERED.
______________________________
REGGIE B. WALTON
United States District Judge
Court Order re: Libby's Third Motion to Compel [Doc 112]
Case 1:05-cr-00394-RBW Document 112 Filed 06/02/2006 Page 1 of 8
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________________
)
UNITED STATES OF AMERICA, )
)
)
v. ) Criminal No. 05-394 (RBW)
)
I. LEWIS LIBBY, )
)
Defendant. )
_____________________________________)
ORDER
On May 5, 2006, this Court heard argument on the defendant's Third Motion to Compel
Discovery Under Federal Rule of Criminal Procedure 16 and Brady v. Maryland, 373 U.S. 83
(1963). This Court has previously set forth an extensive discussion of the applicable discovery
standards it must employ in resolving motions to compel filed under Rule 16 and Brady. United
States v. Libby, ____ F. Supp. 2d ____, ____, 2006 WL 574260, at *2-4 (D.D.C. Mar. 10, 2006).
There is no need to repeat these standards here. After carefully considering the pleadings
submitted by the parties and the oral arguments they presented in connection with this current
motion, the Court must, as it stated during the May 5, 2006 hearing, conclude that the
defendant's motion to compel is largely without merit.
The motion now before the Court seeks an array of documents through ten separately
numbered requests. Before addressing the merits of these requests, it is helpful to set forth what
this case is and is not about, as this reality defines the scope of the discovery the defendant is
entitled to receive.
On October 28, 2005, the defendant was charged in a five-count indictment with
1
Case 1:05-cr-00394-RBW Document 112 Filed 06/02/2006 Page 2 of 8
obstruction of justice in violation of 18 U.S.C. § 1503 (2000), two counts of false statements in
violation of 18 U.S.C. § 1001(a)(2) (2000), and two counts of perjury in violation of 18 U.S.C.
§ 1623 (2000). Indictment at 1. All of these charges arise from a criminal investigation into the
possible unauthorized disclosure of classified information about Valerie Plame Wilson's
affiliation with the Central Intelligence Agency ("CIA") to several journalists. Indictment at 8, ¶
25. And specifically, the charges against the defendant are predicated upon statements that he
allegedly made to Special Agents of the Federal Bureau of Investigation ("FBI") in October and
November, 2003, id. at 9, ¶ 26, and testimony he provided to a grand jury in March 2004, id. at
11, ¶ 30. The allegedly false statements related to conversations the defendant had with news
reporters Tim Russert, Judith Miller, and Matthew Cooper in June and July 2003. Id. at 11-22.
While these purportedly false statements were made against the backdrop of Ambassador
Joseph Wilson's comments about the validity of President George W. Bush's proclamation in his
January 28, 2003 State of the Union address that "[t]he British government has learned that
Saddam Hussein recently sought significant quantities of uranium from Africa," Ambassador
Wilson's comments have only peripheral pertinence to this case. Moreover, although the Special
Counsel's criminal investigation initially focused on whether government officials illegally
disclosed Ms. Wilson's employment with the CIA, the defendant has not been charged with any
such violation. Rather, the only question the jury will be asked to resolve in this matter will be
whether the defendant intentionally lied when he testified before the grand jury and spoke with
FBI agents about statements he purportedly made to the three news reporters concerning Ms.
Wilson's employment. The prosecution of this action, therefore, involves a discrete cast of
characters and events, and this Court will not permit it to become a forum for debating the
2
Case 1:05-cr-00394-RBW Document 112 Filed 06/02/2006 Page 3 of 8
accuracy of Ambassador Wilson's statements, the propriety of the Iraq war or related matters
leading up to the war, as those events are not the basis for the charged offenses. At best, these
events have merely an abstract relationship to the charged offenses. ^1
Nonetheless, this Court recognizes that the charged offenses occurred against this
backdrop and appreciates that some reference to Ambassador Wilson, his trip to Niger, and his
wife during the trial is probably inevitable. Any testimony or other evidence relating to these
subjects, however, will be admitted for limited purposes--to establish what the principal players
(the defendant, the three news reporters, and any other key witnesses) knew about Ambassador
Wilson's wife's affiliation with the CIA and when they knew it, and as evidence of the
defendant's purported motive to reveal Ms. Wilson's affiliation with the CIA to reporters. In
fact, as to this first basis of admissibility, as the indictment makes clear, one aspect of the
government's case will be an attempt to establish the defendant's knowledge of Ms. Wilson's
affiliation with the CIA before his conversations with Miller, Russert, and Cooper. See
Indictment at 12-13, ¶ 33(a)(ii). However, whether the information possessed by any of the
principal players was true or not is immaterial to this case; rather, what will be relevant in regards
to either the prosecution or defense is what, if anything, they knew about the subject and when
they acquired that information. And documents reflecting what these principal players may have
1
This reality is not altered simply because the government intends to introduce into
evidence at trial various news articles that discuss Ambassador Wilson's trip to Niger. See
Government's Response to Court's Inquiry Regarding News Articles the Government Intends to
Offer as Evidence at Trial. The government does not intend to introduce these articles for the
truth of the matters asserted, id. at 1, but rather, only for the limited purpose of demonstrating
that the defendant had a motive to make the statements to the media representatives that form the
basis for the charged offenses. Id. at 2-7. As such, the truth of the articles has no bearing on
the prosecution of this case and the jury will be so instructed if requested by either party.
Moreover, as the government has noted, it is highly unlikely that it will seek to introduce as
evidence the full text of the articles during the trial. And the Court suspects that it would not
permit the government to introduce the entire articles if it sought to do so. What will be
presented to the jury will be addressed by this Court in response to a properly filed motion
in limine.
3
Case 1:05-cr-00394-RBW Document 112 Filed 06/02/2006 Page 4 of 8
known (or did not know) could be used to attack the credibility and recollection of these potential
witnesses.
In response to the charges filed against him, the defendant relates that one aspect of his
defense will be that he was not engaged in a sinister effort to punish Ambassador Wilson or
Valerie Plame Wilson; rather, any discussions he had with the reporters concerning Ambassador
Wilson, his trip to Niger, or Valerie Plame Wilson were conducted solely for the purpose of
refuting the accuracy of Ambassador Wilson's pronouncements. Def.'s Mem. at 3. According to
the defendant, his requests for documents relating to discussions he had with other government
officials or news reporters that show that he was simply engaged in legitimate efforts to rebut the
merits of Ambassador Wilson's findings are material to the preparation of his defense, as their
content would arguably support his claim that the government's position that he intended to
make false statements, commit perjury, and obstruct justice is incorrect. In limited respect, the
Court agrees. See, e.g., United States v. Dunnigan, 507 U.S. 87, 94 (1993) (indicating that intent
is an element of a perjury charge); United States v. Montague, 202 F.3d 261, 2000 WL 14169
(4th Cir. 2000) (noting that intent is an element of a false statement charge); United States v.
Baker, 626 F.2d 512, 516 (5th Cir. 1980) (same). Therefore, if the government is in possession
of documents that show the defendant's intent to participate or his actual participation in such
legitimate efforts, those documents must be produced pursuant to Rule 16.
Although the defendant is entitled to the production of the above category of documents,
the majority of the defendant's remaining requests must be denied. Seven of the defendant's
requests seek documents concerning Ambassador Joseph Wilson and his wife, Valerie Plame
Wilson. Specifically, these requests seek documents concerning Ambassador Wilson's trip to
4
Case 1:05-cr-00394-RBW Document 112 Filed 06/02/2006 Page 5 of 8
Niger, documents relating to any possible attempt by other government officials to punish or seek
revenge against Ambassador Wilson or his wife occasioned by Ambassador Wilson's disclosure
of what he allegedly learned during his trip, and documents reflecting Valerie Plame Wilson's
affiliation with the CIA. ^2 For several reasons, and contrary to the defendant's position otherwise,
the bulk of the documents which may be responsive to these requests are simply not material to
the preparation of the defendant's defense. First, the requests seek all documents from a variety
of Executive Branch components, without regard for whether the defendant or any likely
witnesses even reviewed or ever knew about these documents. Such requests seek documents
that are far too attenuated to any issue in this case to fall within the scope of Rule 16(a)(1)(E).
2
Specifically, the defendant's requests are for:
(1) All documents and information generated or received by the State Department, the
CIA, the Executive Office of the President and/or the National Security Council
("NSC"), concerning Mr. Wilson's trip to Niger, including
(a) the origins of Mr. Wilson's trip to Niger, including any role played
by Ms. Wilson in connection with the trip;
(b) reports about the trip; and
(c) subsequent discussion, comment or analysis concerning the trip, including
government documents concerning the trip and/or Ms. Wilson's role in it
that were generated after May 6, 2003, when the controversy surrounding
the disputed sixteen words erupted.
(2) All documents or communications reflecting any possible attempt or plan by any
government official to punish or seek revenge against Mr. Wilson or Ms. Wilson.
(3) All documents reflecting Mr. Wilson's communications with officials at the State
Department or other government agencies concerning his trip to Niger or the
"sixteen words."
(4) All documents reflecting discussions within the government of whether to release
a public statements during the week of July 7, 2003 regarding the inclusion of the
"sixteen words" in the 2003 State of the Union Address, including all drafts of the
July 11, 2003 statement issued by Director of Central Intelligence George Tenet.
(5) Any notes from the September 2003 meeting in the Situation Room at which Colin
Powell is reported to have said that (a) everyone knows that Mr. Wilson's wife
worked at the CIA and that (b) it was Mr. Wilson's wife who suggested that the CIA
send her husband on a mission to Niger.
(6) All documents or information concerning the identity of any government official
outside the CIA who was aware prior to July 14, 2003 that Ms. Wilson worked for
the CIA.
Third Motion of I. Lewis Libby to Compel Discovery under Rule 16 and Brady (Def.'s Mot.) at 13-14.
In addition, as to the first request, the defendant lists individuals for whom he claims
responsive documents are critical to the preparation of his defense. Def.'s Mot. at 15-16.
5
Case 1:05-cr-00394-RBW Document 112 Filed 06/02/2006 Page 6 of 8
Rather, the only documents that would be material to the preparation of the defense are those that
were reviewed by either the defendant or potential witnesses. See United States v. George, 786
F. Supp. 56, 64 (D.D.C. 1992) ("It is immaterial what Congress knew unless the defendant was
aware of their knowledge."). Thus, for example, the fact that other governmental officials may
have known before July 14, 2003, that Ms. Wilson worked for the CIA is completely immaterial
unless that information was shared with either the defendant, Miller, Russert, or Cooper.
Moreover, the only use that could be made with the vast majority of the requested documents that
fall within the seven categories would be to challenge the accuracy of Ambassador Wilson's
comments about the validity of President Bush's statement about Saddam Hussein and Niger in
his January 28, 2003 State of the Union address. And, as previously discussed, documents and
information which may have bearing on the accuracy or inaccuracy of the President's statement
on that topic, why the United States invaded Iraq, and the circumstances surrounding
Ambassador Wilson's trip to Niger and his reported findings are wholly immaterial to this case. ^3
See George, 786 F. Supp. at 60-64. Thus, of these seven categories of documents, the only
documents that would be material to the preparation of the defense are those which tend to show
that the defendant's conversations with government officials did or did not occur as alleged in the
indictment. ^4 See, e.g., Indictment at 7-8.
3
The defendant's request for "[a]ll documents or information concerning the identity
of any government official outside the CIA who was aware prior to July 14, 2003 that Ms. Wilson
worked for the CIA" must be rejected for the same reason. Ms. Wilson's documented status as an
employee of the CIA, unless viewed by the defendant or the content of the documentation was made
known to him or a potential government witness, is simply immaterial to the preparation of the
defense and thus not discoverable.
4
The government contends that production of documents of this nature may implicate grand
jury secrecy rules. Gov't's Opp'n at 26. This Court is not in the position at this point to
determine what documents, if any, are not subject to production pursuant to Fed. Crim. R. 6(e).
If the government determines that there exist documents
(continued...)
6
Case 1:05-cr-00394-RBW Document 112 Filed 06/02/2006 Page 7 of 8
In addition, the defendant seeks a variety of documents relating to the 2002 National
Intelligence Estimate (NIE) and its declassification. ^5 However, during the May 5, 2006 hearing,
the government noted that there is no allegation in the indictment that findings of the NIE were
improperly disclosed by the defendant and that it will make no such argument during the trial. ^6
Accordingly, since the legality of the defendant's disclosures of the NIE will not be at issue in
this case, documents relating to it and its declassification need not be produced.
Finally, this Court has examined, in camera, the CIA's referral to the Department of
Justice concerning the disclosure of Ms. Wilson's affiliation with the CIA, and concludes that it
is simply not material to the preparation of the defendant's defense. The defendant's request for
disclosure of documents related to the referral must therefore be denied.
For the foregoing reasons, the defendant's motion, although largely without merit, is
granted in part and denied in part. Accordingly, it is hereby this 2nd day of June, 2006,
ORDERED that the government shall produce, forthwith, to the extent it has not already
done so, the following category of documents which are currently in its physical possession or
4
(...continued)
that are covered by Rule 6(e), it is welcome to seek a protective order from this Court
pursuant to Rule 16(d).
5
Specifically, the following requests have been made by the defendant:
(1) All documents relating to the possible declassification of the 2002
National Intelligence Estimate ("NIE") (in whole or in part).
(2) All documents relating to or reflecting public comments by government
officials about the NIE or its contents prior to July 18, 2003.
Def.'s Mot. at 14.
6
The Court also notes that upon request by the defendant, it will instruct the jury
that there are no allegations that the disclosure of the NIE was in anyway improper or illegal.
7
Case 1:05-cr-00394-RBW Document 112 Filed 06/02/2006 Page 8 of 8
which the Special Counsel has knowledge, ^7 and which are not documents subject to production
under the Jencks Act, 18 U.S.C. § 3500 (2000) or Giglio v. United States, 405 U.S. 150 (1972):
(1) All documents which tend to demonstrate that the defendant was involved in an
effort to rebut the accuracy of Ambassador Wilson's findings concerning his trip
to Niger, and thus any documentation of discussions the defendant had concerning
Ambassador Joseph Wilson, his trip to Niger, or Valerie Plame Wilson with any
news reporters or other government officials that were conducted in an attempt to
achieve this objective;
(2) All documents which tend to show that the defendant's conversations with
government officials did or did not occur as alleged in the indictment.
(3) All documents, from any individuals, whether or not they will be called as
witnesses in the government's case-in-chief, that are discoverable under
Brady v. Maryland, 373 U.S. 83 (1963). ^8
In all other respects the defendant's motion is DENIED.
SO ORDERED.
____________________________
REGGIE B. WALTON
United States District Judge
7
In one of this Court's earlier opinions, United States v. Libby, ___ F. Supp. 2d ___,
___, 2006 W L 574260, at *5-6 (D.D.C. Mar. 10, 2006), the Court concluded that the CIA and the
Office of the Vice President were closely aligned with the protection and thus documents possessed
by those entities were discoverable. Id. The Court will not revisit that ruling here. In response
to the current motion, the government contends that the W hite House, the National Security Council,
and the State Department are not closely aligned with the prosecution, and thus production of
documents in the possession of those agencies should not be compelled. Gov't's Opp'n at 32. The
defendant, however, has limited his requests to documents which are in the Special Counsel's
possession or which the Special Counsel has knowledge. Def.'s Reply at 23. This limitation would
appear to resolve any issue concerning what documents are covered by this Order. To the extent
it does not, the defendant shall advise the Court and it will revisit this issue. Therefore, the
government at this time is required to produce only those documents possessed by the Special
Counsel or which the Special Counsel has knowledge as limited by this Court's earlier opinion.
8
Both parties submitted additional pleadings on the issue of whether production of
documents should be limited to government witnesses, or should also include defense witnesses.
Although helpful, the Court does not need to reach that issue as it is simply requiring the
production of documents relating to the allegations in the indictment that are in the physical
possession of the government.
8
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