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Tuesday, November 14, 2006

Libby - Court Opinion Rejecting Fitzgerald Evidence Substitutions

                                UNITED STATES DISTRICT COURT
                                FOR THE DISTRICT OF COLUMBIA

      v.                            )                          Criminal No. 05-394 (RBW)
I. LEWIS LIBBY,                     )
             Defendant.             )

                                       MEMORANDUM OPINION

         As the trial in this matter rapidly approaches, the Court has been engaged in on-going

hearings called for by the Classified Information Procedures Act ("CIPA"), 18 U.S.C. App. III

(2000). Initially, the Court conducted a series of hearings over seven days to address the "use,

relevance, and admissibility" of classified information pursuant to Section 6(a) of the CIPA.

During these hearings, the Court employed the Federal Rules of Evidence without regard for the

classified nature of the documents and information in ruling on the relevance, use, and

admissibility of the classified information the defendant seeks to introduce in support of his

defense. United States v. Libby, ___ F. Supp. 2d ___, ___, 2006 WL 2692749, at *1 (D.D.C.

Sept. 21, 2006). Having concluded the hearings conducted pursuant to Section 6(a), and in

response to the government's motion pursuant to Section 6(c) of the CIPA, ^1 the Court has now

            The following papers have been filed in connection with this motion: (1) the Government's Motion
Pursuant to CIPA Section 6(c) for Substitutions in Lieu of the Disclosure of Classified Information ("Gov't's Mot.")
and (2) the Response of Defendant I. Lewis Libby to Government's First Set of Proposed Substitutions ("Def.'s


proceeded with hearings to determine whether non-classified information and documents can be

substituted for the classified information that this Court deemed relevant and admissible during

the Section 6(a) proceedings. The Section 6(c) hearings commenced on November 7, 2006.

During this initial day of the hearings, the parties presented the Court with arguments concerning

the standard the Court should employ when determining whether the substitutions proposed by

the government fulfill the government's statutory obligation. For the reasons that follow, the

Court concluded, in large part, that the substitutions proposed by the Government do not satisfy

Section 6(c) of the CIPA. ^2

                                                I.     Discussion

         The CIPA establishes the procedures for providing pretrial notification of a defendant's

intent to use classified information at his trial and the process for determining exactly what

information the defendant will be permitted to introduce. United States v. Fernandez, 913 F.2d

148, 151 (4th Cir. 1990). Its purpose is to "permit the government to ascertain the potential

damage to national security of proceeding with a given prosecution before trial." S. Rep. No. 96-

823, at 1 (1980), reprinted in 1980 U.S.C.C.A.N. 4294, 4294. This Court has devoted substantial

time and paper discussing the various statutory provisions of the CIPA and the standards that this

Court will employ when presented with motions covered by these provisions. See, e.g., United

States v. Libby, 429 F. Supp. 2d 18 (D.D.C. 2006), amended by, 429 F. Supp. 2d 46 (D.D.C.

2006) (discussing Section 4 of the CIPA); United States v. Libby, __ F. Supp. 2d __, 2006 WL

2692749 (D.D.C. 2006) (discussing Section 6(a) of the CIPA). And now, the Court turns to

            In light of this ruling, the government has gone back to the drawing board to assess whether new
substitutions can be devised that comply with the requirements of Section 6(c). Hopefully, this opinion will provide
further guidance as to what the Court will sanction.


Section 6(c) of the CIPA.

       Section 6(c) of the CIPA provides:

               (1) Upon any determination by the court authorizing the disclosure of specific
               classified information under the procedures established by this section, the United
               States may move that, in lieu of the disclosure of such specific classified
               information, the court order --
                        (A) the substitution for such classified information of a statement
                        admitting relevant facts that the specific classified information would tend
                        to prove; or
                        (B) the substitution for such classified information of a summary of the
                        specific classified information.
               The court shall grant such a motion of the United States if it finds that the
               statement or summary will provide the defendant with substantially the same
               ability to make his defense as would disclosure of the specific classified
               information. The court shall hold a hearing on any motion under this section.
               Any such hearing shall be held in camera at the request of the Attorney General.

18 U.S.C. App. III, § 6(c). Although this provision, on its face, allows this Court to replace

otherwise relevant classified information with either "a statement admitting relevant facts that the

specific classified information would tend to prove" or "a summary of the specific classified

information," so long as the substitute "will provide the defendant with substantially the same

ability to make his defense," id., Congress made clear that this provision "rests on the

presumption that the defendant should not stand in a worse position, because of the fact that

classified information is involved, than he would without this act." S. Rep. No. 96-823, at 9

(1980), reprinted in 1980 U.S.C.C.A.N. 4294, 4302; see United States v. Moussaoui, 382 F.3d

453, 477 (4th Cir. 2004); Fernandez, 913 F.2d at 154. However, while the Court must ensure

that any substitution will provide the defendant the ability to make his defense, Congress did not

intend to require that the evidence the Court permits a defendant to present in support of his

defense be the "precise, concrete equival[ent]." H.R. Conf. Rep. No. 96-1436, at 12 (1980),


reprinted in 1980 U.S.C.C.A.N. 4397, 4310. In fact, as just noted, the plain language of the

statute provides two methods through which substitutions can be made--a statement admitting

relevant facts or a summary of the classified information. Thus, the Court is not limited in the

manner in which it permits substitutions, so long as the approved substitutions "provide the

defendant with substantially the same ability to make his defense." 18 U.S.C. App. III, § 6(c);

see, e.g., United States v. Collins, 603 F. Supp. 301, 304 (S.D. Fla. 1985) ("It does not follow,

however, that because the evidence is relevant that it is necessarily admissible in the form

offered."); see also United States v. Wilson, 750 F.2d 7, 9 (2d Cir. 1984). Moreover, "[t]he fact

that insignificant tactical advantages could accrue to the defendant by the use of the specific

classified information should not preclude the court from ordering alternative disclosure." H.R.

Conf. Rep. No. 96-1436, at 12-13 (1980), reprinted in 1980 U.S.C.C.A.N. 4307, 4310-11; see

United States v. Juan, 776 F.2d 256, 259 (11th Cir. 1985) ("The court may find that a 6(c)

alternative proposed by the government will provide the defendant with his defense, even though

the defendant might rather threaten his prosecutor with the disclosure of more detail."). Thus,

the statute contemplates that the Court will permit a substitution even if it is not the exact means

through which the defendant prefers to introduce the evidence.

       Based upon the plain language of the text, the government can seek to substitute

unclassified information for classified information. And that substitution can be in one of two

forms. Here, the government has proposed substitutions for the classified information this Court

concluded was relevant and admissible during the Section 6(a) hearings in both forms. First, the

government's proposed substitutions include a lengthy statement admitting, in essence, that the

defendant worked long hours, attended many significant meetings, and dealt with a wide variety


of extremely important matters of national security. Gov't's Mot. at 10-11. In addition, the

government proposed substitutions for various topic narratives and classified documents. The

substitutions provided by the government address each of the general topic areas that the

defendant anticipates using to show that these matters were consuming his time and attention

when the events critical to this prosecution occurred, and that these events would have impacted

the accuracy of his memory when he was later called upon to remember other events that would

have occurred at those times. However, the substitutions proposed by the government do not

provide substitutions for each matter within the topic summaries that the defendant contends

consumed his time and attention. For example, during the November 7, 2006 hearing, the

defendant identified no less than eleven events for which there were no proposed substitutions.

       The government contends that its proposed substitutions are adequate because the statute

merely requires that the defendant have the same "ability" to make his defense, Gov't's Mot. at 3,

and that the Court's inquiry need not focus on "how close the substitution is to the classified

information itself." Id. Rather, the government posits that this Court should examine the

defendant's aggregate defense, gleaned from the perspective of both the classified and

unclassified evidence, in comparison to the defendant's aggregate defense when considered with

the proposed substitutions for the evidence. Id. at 3-4. According to the government, if the

aggregate defense with the proposed substitutions permits the defendant to put on a defense that

is substantially the same as it would have been with the classified information, the substitutions

are proper and the Court's inquiry can end. And under this approach, the government opines that

it is entirely appropriate for the substitutions to exclude certain pieces of classified information in

whole, so long as the defendant is still able to put on a substantially similar defense. Id. at 10-11.


        The defendant objects to the substitutions proposed by the government, arguing that the

substitutions (1) entirely omit a number of critical issues without proposing substitutions; (2) the

substitutions remove key information that the jury must be presented with to understand the

importance of these matters to the defendant; and (3) the substitutions often times rewrite and

change the meaning of the defendant's proposed testimony. Def.'s Response at 1. As a result of

these alleged errors and omissions, the defendant claims that the government has failed to

establish that the substitutions "provide the defendant with substantially the same ability to make

his defense as would disclosure of the specific classified information." Id.

        The question this Court must resolve is whether the substitutions currently proposed by

the government "will provide the defendant with substantially the same ability to make his

defense as would disclosure of the specific classified information." 18 U.S.C. App. III, § 6(c).

For the reasons that follow, they will not.

        There is no existing written case authority describing the lens though which a Court

should look to determine whether a proposed substitution "will provide the defendant with

substantially the same ability to make his defense as would disclosure of the specific classified

information." 18 U.S.C. App. III, § 6(c). Despite this absence of authority, the Court is not

completely without guidance. It is axiomatic that a Court should interpret a statute in a manner

so as to avoid constitutional questions. See Fed. Election Comm'n v. Akins, 524 U.S. 11, 32

(1998) ("[t]he doctrine of constitutional doubt . . . counsels us to interpret statutes, if possible, in

such fashion as to avoid grave constitutional questions."); see also United States ex rel. Attorney

General v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909). Accordingly, when construing

Section 6(c) of the CIPA, the Court must try, if possible, to interpret the provision it in a manner


that does not infringe on the constitutional rights of a criminal defendant embodied in the Sixth

Amendment. In fact, the legislative history of this statute makes clear that the drafters of this

statutory provision were careful to ensure that a defendant's rights were not substantially altered.

See H. Rep. No. 96-831, pt. 1, at 20 (1980) (Congress adopted the "substantially the same ability

to make his defense" standard "to make it clear that alternate disclosure was to be allowed only if

the court found that it was, in effect, equivalent disclosures."); H. Rep. No. 96-831, pt. 2, at 6

(1980) (noting that this provision "does not mean to suggest that any hardship to the defense

should be permitted . . . . It is the Committee's intent that there be no impairment of either the

defendant's ability to present his case or his right to a fair trial as a result of the operation of this

section"). Therefore, the standard Congress codified must be construed in a manner that is

consistent with the protections provided in the Sixth Amendment. Thus, examining a criminal

defendant's right to present a defense generally will help place into context whether a proposed

substitution affords him "substantially the same ability to make his defense." 18 U.S.C. App.,

§ 6(c). If the substitution infringes on the defendant's Sixth Amendment rights, the substitution

is insufficient.

        It is a fundamental guarantee of the Sixth Amendment to the Constitution that a criminal

defendant has the right to present a defense to the charges he is facing. Taylor v. Illinois, 484

U.S. 400, 409 (1988) (citing Washington v. Texas, 388 U.S. 14, 19 (1967)). This fundamental

right includes "the right to present the defendant's version of the facts . . . to the jury so it may

decide where the truth lies." Washington, 388 U.S. at 19. However, "[a] defendant's right to

present relevant evidence is not unlimited, but rather is subject to reasonable restrictions. A

defendant's interest in presenting such evidence may thus `bow to accommodate other legitimate


interests in the criminal trial process.'" United States v. Scheffer, 523 U.S. 303, 308 (1998)

(internal citations omitted). "But restrictions of a defendant's right to testify may not be arbitrary

or disproportionate to the purposes they are designed to serve." Rock v. Arkansas, 483 U.S. 44,

55-56 (1987). In fact, procedural and evidentiary rules that control the presentation of evidence

may not compromise a defendant's Sixth Amendment rights. Chambers v. Mississippi, 410 U.S.

284, 295 (1973). Nonetheless, "[i]n these circumstances, where constitutional rights directly

affecting the ascertainment of guilt are implicated, [evidentiary rules] may not be applied

mechanistically to defeat the ends of justice." Id. at 302. Thus, the Supreme Court has "found

the exclusion of evidence to be unconstitutionally arbitrary or disproportionate only where it has

infringed upon a weighty interest of the accused." Scheffer, 523 U.S. at 308. Accordingly, a

court "may not apply a rule of evidence that permits a witness to take the stand, but arbitrarily

excludes material portions of his testimony." Rock, 483 U.S. at 55.

       The protections embodied in the Sixth Amendment are guaranteed to a defendant

regardless of whether classified information is implicated in criminal proceedings. And the

foregoing discussion makes clear that while a defendant's right to present a defense is guaranteed

under the Constitution, that right is not absolute. In this regard, courts frequently limit the

presentation of a defendant's defense based on the Federal Rules of Evidence. See Fed. R. Evid.

403 ("Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time");

see also United States v. Dunn, 846 F.2d 761, 763 (D.C. Cir. 1988) (noting that a trial court has

broad discretion to exclude cumulative evidence). In fact, in connection with the Section 6(a)

hearings, this Court has excluded otherwise relevant evidence from the trial that will occur in this

prosecution under Federal Rule of Evidence 403, concluding that although the evidence is


relevant, "its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of

time, or needless presentation of cumulative evidence." Fed. R. Evid. 403. The test under Rule

403 balances "[t]he exclusion of otherwise admissible evidence or testimony sought to be

presented by a criminal defendant . . . [with the defendant's] sixth amendment right" to present a

defense. United States v. Davis, 639 F.2d 239, 244 (5th Cir. 1981). This same balancing must

be applied in any situation where otherwise relevant evidence is subject to exclusion.

       Under Section 6(c) of the CIPA, the Court can substitute otherwise relevant classified

evidence for nonclassified evidence if that nonclassified evidence "will provide the defendant

with substantially the same ability to make his defense as would disclosure of the specific

classified information." 18 U.S.C. App. III, § 6(c). And just as with Rule 403, when

determining whether a substitute satisfies this standard, the Court must balance the substitution

for otherwise relevant classified evidence against the defendant's Sixth Amendment right to put

on a defense. See, e.g., Fernandez, 913 F.2d at 161 (noting that the district court, when

examining whether substitutions were appropriate under Section 6(c) of the CIPA, "weigh[ed]

the interests of national security against the need to provide Fernandez with a fair trial."). Under

Rule 403, the Rule itself codifies the factors a Court should examine when determine whether

relevant evidence should be excluded. Fed. R. Evid. 403 (requiring the court to balance, for

example, the probative value of the evidence with the danger of unfair prejudice). Although

Section 6(c) of the CIPA does not list specific factors to be considered when determining

whether a substitution is acceptable, a court must at bottom balance the government's national

security interests in protecting classified information against the defendant's ability to put on his


defense. And to assess the defendant's ability to put on his defense, the Court should first

examine the nature of the defendant's defense and then analyze whether the defendant will have

the same ability to put on that defense with the substitutions and other evidence he has available

to him.

          Although not explicitly stating that it was employing such a balancing, the Fourth Circuit

in United States v. Fernandez, conducted such an analysis. There, the defendant, the former

Central Intelligence Agency station chief in Costa Rica, was charged with making false

statements and obstructing justice after he had allegedly given false information to investigators

concerning the construction of an air strip in Costa Rica. 913 F.2d at 150-51. Specifically, he

was charged for having stated that the air strip was initiated by the Costa Rican government; that

it was being used for training activities in preparation for a feared invasion by Nicaragua; and

that he did not know that it was being used to resupply the Contras with weapons and

ammunition. Id. To defend himself against the charges, Fernandez intended to show, in part,

that the statements he would acknowledge he made were true. Id. at 151. To present this

component of his defense (the truthfulness of his statements), the defendant sought to introduce

classified information concerning several other intelligence projects undertaken jointly by the

United States and Costa Rican governments, as well as classified evidence of the CIA's

involvement in the operation to resupply the Contras with weapons and ammunition. Id. at 152.

Both the district court and the Fourth Circuit concluded that such evidence was relevant and

admissible under Section 6(a) of the CIPA. Id. at 155-56. And in agreeing with the district

court's conclusion that the government's proposed substitutions for this classified evidence were

inadequate, the Fourth Circuit first considered the nature of the defendant's defense, id. at 158


(noting that the trial judge had concluded that an essential component of Fernandez's defense

was the presentation of classified evidence about "the origin, purpose, and scope" of the other

intelligence projects), and then assessed the impact of not being able to present this classified

evidence would have on his defense, id. This Court concludes that it must engage in a similar

analysis here.

       In examining the substitutions provided by the government with this framework in mind,

this Court must conclude that as currently proposed, the substitutions do not provide the

defendant with substantially the same ability to make his defense. That having been said, there

can be no argument that the government has an important interest in protecting the classified

information at issue from disclosure. And as set forth in the affidavit provided to this Court for

its ex parte, in camera review on November 7, 2006, this interest is substantial. But that alone

does not mandate that this Court accept any substitutions proposed by the government. Rather,

the Court must examine the nature of the defendant's defense and any other evidence proffered in

furtherance of this defense to assess whether the government's proposed substitutions are

constitutionally adequate.

       The defendant's faulty memory defense has both quantitative and qualitative components.

In other words, he is alleging both that the volume of his work would have impacted his memory

and that some of the information presented to him as the Vice President's National Security

Advisor was so potentially catastrophic to the well being of the country that the focus he had to

devote to this information also impacted his memory. If the defendant's defense was focused

solely on the quantity of information that came to his attention and the volume of his work, the

substitutions provided by the government would no doubt suffice. This is especially true because


the defendant could introduce as evidence, in addition to the proposed substitutions, among other

things, his daily calendars, the number of days per week he worked, the hours he worked, and the

number of meetings he attended. However, volume is not the extent of the defendant's defense.

Rather, he contends that at the time of various critical dates and thereafter during the time before

he spoke to the FBI agents and testified before the grand jury, he was consumed with matters of

such importance to the security of this nation that any mistakes he may have made in

remembering his earlier conversations with the various news reporters were inadvertent and not

the product of wilful disinformation. As to this aspect of the defense, other than the classified

information the defendant seeks to introduce, he has no other evidence in his arsenal to present

this proposition to the jury. Thus, to determine whether the government's proposed substitutions

are appropriate, the Court must examine whether those substitutions strike the right balance

between the government's national security interest and the defendant's Sixth Amendment right

to present his defense.

       Balancing these factors, this Court concludes that the government's proposed

substitutions, as currently proposed, will not provide the defendant with substantially the same

ability to make his defense. The substitutions exclude in their entirety at least eleven events

which collectively added significantly to the qualitative component of his defense. To credibly

present his defense, the defendant must be provided the opportunity to bring to the jury's

attention, though testimony or otherwise, the magnitude of his mental occupation with pressing

matters involving national security. And this can only be accomplished if he can describe to the

jury the activities that consumed his time and attention, and why those activities were of such

importance to him. The proposed substitutions, which would exclude extremely significant


items of classified information, goes too far and their collective omission would prevent the

defendant from being able to show the jury the true nature of his defense. Thus, to approve the

substitutions now proposed by the government would amount to a grave error of constitutional


       This ruling does not give the defendant "free reign" over his testimony, Collins, 603 F.

Supp. at 304; rather, it merely allows the defendant to testify and present evidence on those

matters that this Court has deemed relevant, admissible, and whose omission would impair the

defendant's ability to present a meaningful defense. Nor should this ruling be interpreted as a

proscription against the exclusion of any item of classified information deemed relevant and

admissible in its entirety. This is not a numbers game where there must be a one-for-one

substitution; rather, as discussed above, a balancing must be conducted.

       Obviously some of the information the defendant desires to present will potentially lend

greater credibility to his memory defense than others. Undoubtedly, he would have been

distracted and therefore consumed to varying degrees based on the immediacy and importance of

the national security information he received. And some of the information the government

seeks to suppress would fall on the high end of this equation, while other information would not.

On the other end of the scale is the government's interest in protecting national security

information from public disclosure. And just like the defendant cannot credibly contend that all

of the information he seeks to introduce would have impacted his memory equally, the

government cannot seriously assert that disclosure of all the information it desires to suppress

would equally pose the same level of potential harm to national security. This is a difficult

balance to make, but having taken into account the above considerations, the record currently


before the Court requires it to reject the proposed substitutions because the collective exclusion

of the information at issue would unduly handicap the defendant's ability to show the jury the

full contours of his memory defense.

       Putting aside the omission discussion above, the Court recognizes that the government

has provided a substantial number of actual substitutions for other items of classified information

and documents that this Court has ruled are admissible and relevant. At this time, the Court

passes no judgment on the adequacy of these proposed substitutions. The Court notes, however,

that it firmly believes that what the government has provided by and large demonstrates that with

further effort it can develop substitutions that will overall protect the government's national

security interest and still afford the defendant with substantially the same ability to present his

defense. Unlike United States v. Fernandez, where the Fourth Circuit affirmed the district

court's rejection of the government's substitutions because the classified information there would

"directly substantiate[] the truth of his alleged false statements," 913 F.3d at 156, the classified

information at issue here does not directly substantiate that the defendant did not make false

statements to the Special Agents or that he did not commit perjury before the grand jury. Rather,

the classified information the defendant seeks to introduce is being offered to show the other

activities the defendant was involved in commanded his time and attention such that any

misstatements he purportedly made that form the basis for the charges he faces were inadvertent.

This distinction is important because while the classified information is relevant to show what

these activities were that consumed his time and attention, this Court has difficulty seeing why

properly unclassified substitutions cannot be developed that accomplish this objective. All this

Court believes is needed is a more thoughtful effort to strike the proper balance between the


government's legitimate need to avoid the disclosure of classified information that could

jeopardize national security against the defendant's constitutionally embedded right to receive a

fair trial, which necessarily encompasses the right to comprehensively defend himself against the

crimes he is charged with committing.

                                             II.    Conclusion

       This Court fully appreciates in this post-9/11 era that there are forces in this world that

aspire to destroy America and all of Western society. So this Court understands the nation's

need to vigorously identify those forces and aggressively ensure that they are unable to bring

about the destruction they desire to inflict on America and its allies. But despite the daunting

potential that future attacks of 9/11 proportion (or even greater) will be inflicted on this nation

and its friends, when the threat is someday hopefully abated, the core values that underlie what is

embodied in our Constitution must survive the war being waged against terrorism. And this

uncompromising need to preserve the rights and privileges that make America what it is as a

nation has been a compass for the balancing this Court has conducted and leads it to conclude

that the substitutions currently proposed by the government will not provide the defendant with

substantially the same ability to make his defense. Accordingly, the government must go back to

the drawing board and come forth with a more balanced proposal.

       SO ORDERED this 13th day of November, 2006. ^3

                                                                    REGGIE B. WALTON
                                                                    United States District Judge

           An Order consistent with this Court's ruling accompanies this Memorandum Opinion.


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