Transcribed by hand. Probably contains errors, definitely contains omissions (generally noted by notes)
Case 1:05-cr-00394-RBW Document 210 Filed 12/04/2006 Page 1 of 8 REPLY OF I.LEWIS LIBBY IN SUPPORT OF MOTION FOR RECIPROCAL DISCLOSURE UNDER CIPA SEC. 6(f) AND THE FIFTH AMENDMENT DUE PROCESS CLAUSE Despite the extensive disclosures Mr. Libby has made under CIPA Secs. 5 and 6, on pain of preclusion of the classified evidence supporting his defense, the government contends that is has no reciprocal disclosure obligation under CIPA Sec. 6(f) and the Fifth Amendment Due Process Clause. ^1 The government's interpretation of CIPA Sec. 6(f) disregards both the plain language and the legislative history of the statute. That interpretation, if adopted by the Court, would violate Mr. Libby's right to due process under Wardius v. Oregon, 412 U.S. 470 (1973), and its progeny. The Court should (1) require the government to provide to the defense all information it expects to use to rebut the classified information that the Court has determined to be relevant and admissible under CIPA Sec, 6(a), and (2) place the government under a continuing duty to provide such information. FN1 Government's Response to Defendant's Motion for Reciprocal Disclosure Under CIPA Sec. 6(f) (filed Nov. 28, 2006) ["G. Opp."] -- page 1 -- ARGUMENT I. THE GOVERNMENT IMPROPERLY MINIMIZES THE SCOPE OF THE CLASSIFIED INFORMATION THE COURT HAS FOUND RELEVANT AND ADMISSIBLE AND MISINTERPRETS THE TERM "REBUT" CIPA Sec. 6(f) requires the government to disclose the information it "expects to use to rebut the classified information" that the Court finds relevant and admissible under CIPA 6(a). Because the government disclaims any intent to "challenge the veracity and accuracy of" the historical facts reflected in the classified information the Court has found relevant and admissible, it contends that it has nothing to disclose under Sec. 6(f). E.g., G. Opp. 3. The government is wrong in two respects. First, the classified information that the Court has found relevant and admissible includes not only the historical facts referred to in Mr. Libby's notice, but also his proffered explanation of the effect of information about those facts on his state of mind at the relevant times. Mr. Libby's CIPA Sec. 5 Notice includes counsel's proffers at the CIPA Sec. 6(a) concerning the use, relevance, and admissibility of the information contained in Mr. Libby's narrative notice and the noticed documents, as modified in the course of the hearing. See, e.g., Memorandum Opinion at 5, n 7 (Nov. 15, 2006). Under Sec. 6(f), the government must provide the information it will use to rebut that classified information, as well as the classified historical facts. Second, the government interprets the term "rebut" in Sec. 6(f) too narrowly. Evidence that "challenges the veracity and accuracy of" information undoubtedly tends to rebut that information. But "rebut" has a broader meaning than the government acknowledges. Rebuttal evidence is "'evidence given to explain, repel, counteract, or disprove facts given in evidence by the opposing party.'" United States v. Stitt, 250 F.3d 878, 897 (4th Cir. 2001) (quoting Black's Law Dictionary 1267 (6th ed. 1990)); see, e.g., United States v. Catalan Roman, 376 F.Supp 2d -- page 2 -- 108, 115,116 (D.P.R. 2005) (same). The government seeks to limit this definition to "disprove" and exclude from its reciprocal disclosure obligation evidence that tends to "explain," "repel," or "counteract" the classified information that the Court has found relevant and admissible. In this case, such rebuttal evidence would include, for example, testimony or documents (if any) tending to show that Mr. Libby did not consider the national security matters reflected in his CIPA Sec. 5 Notice of greater significance than the snippets of conversation concerning Valerie Wilson, or that those national security matters did not command Mr. Libby's attention to such an extent that he confused, forgot, or misremembered the bits of conversation concerning Ms. Wilson. The government's narrow interpretation of its disclosure obligation ignores the legislative history of CIPA Sec. 6(f). The Department of Justice bill (H.R. 4745) -- one of three bills offered to address the "graymail" problem -- contained no reciprocal disclosure provision. See Graymail Legislation Hearings Before the Subcommittee on Legislation of the Permanent Select Committee on Intelligence of the House of Representatives, 96th Cong., 1st. Sess., at 12-13, 24-27, 30-31, 181-94 (Aug. 7, 1979) ["HPSCI Hearings"]. Witness after witness objected to the DOJ approach and argued that Wardius requires reciprocity. ^2 Congress ultimately included Sec. 6(f) based on considerations of due process and simple fairness. ^3 Witnesses before Congress recognized that reciprocal disclosure is particularly important when -- as under CIPA Secs. 5 and 6 -- the defendant must reveal not only evidence he intends to use, FN2 E.g., HPSCI Hearings at 76-77 (attorney Michael G. Scheininger), 98 (former Deputy Solicitor General Philip Lacovara). 124, 126 (professor William Greenhalgh), 139 (attorney Otto Obermaier; Graymail, S. 1482: Hearing Before the Subcommittee on Criminal Justice of the Committee on the Judiciary, United States Senate, 96th Cong. 2nd Sess., Serial No. 96-57, at 51 (Feb. 7 1980) (Morton H. Halperin on behalf of the ACLU) ["Senate Hearing"]: id. at 60 (Scheininger), 66 (former United States Attorney Earl Silbert), 122-23 (Lacovara). FN3 See H. Rep. No. 98-831, pt. 1, 96th Cong., 2d Sess., at 23 (1980) (HPSCI) (reciprocity provision "is based on the beliefs that the principles of Wardins and Williams are applicable to the kind of notice required by H.R. 4736 and that regardless of the constitutional issue, simple fairness mandates that the government not be given an undue advantage because the defense must disclose a portion of its case before trial"): S. Rep. No. 96-823, 96th Cong. 2d Sess. 10 ("Without reaching the question of whether such reciprocity is required [citing Wardius], the committee believes that placing such a reciprocal duty on the Government is a matter of fairness."), reprinted in 1980 U.S. Code Cong. & Ad. News 4294, 4303. -- page 3 -- but his trial strategy, including the relation between the noticed evidence and his theory of defense. [ balance of legislative history snipped] In light of this legislative history, there is little doubt that Congress intended the government's reciprocal disclosure obligation under CIPA Sec. 6(f) to include more than merely information that disproves the historical facts reflected in the defendant's classified information. When the defendant must identify the classified information he reasonably expects to disclose and explain how that information relates to his theory of the defense, the government must (unless "the interests of fairness do not so require," an issue we address below) provide the information it intends to use to rebut the defense that the classified information tends to establish. See United -- page 4 -- States v. North, 910 F.2d 843, 902 (appellant did not show prejudice from nondisclosure of the evidence the government used to "'refute' his defenses"), modified on other grounds. 920 F.2d 940 (D.C.Cir. 1990) ^4 [snip argument on the doctrine of constitutional avoidance] If the government's interpretation of Sec, 6(f) were to prevail -- if Mr. Libby could be required to identify the classified evidence supporting his memory defense and explain how each piece of evidence was relevant to that defense, with no reciprocal obligation on the government to disclose evidence it will use to rebut the memory defense -- then CIPA would FN4 The government (G Opp. 5) cites a footnote in North, in which the majority observed, over dissent from Judge Silberman, that [d]iscovery proceedings under CIPA ... entail the kind of strong state interest that may justify an exchange of information between the prosecution and the defense that is not entirely reciprocal" 910 F.2d at 902 n.41; see id. at 936 n.6 (Silberman, J., dissenting) ("The overall importance of CIPA is irrelevant. The Majority surely cannot claim there is any state interest, let alone a strong one, in the government's refusal to turn over the evidence it uses to refute a defendant's compelled disclosure. There is also no basis whatsoever for the Majority's claim that CIPA allows defendants to 'graymail' the government out of pursuing legitimate prosecutions. If the defendant cannot make use of classified but exculpatory evidence at a public trial, then the prosecution is not legitimate." (emphasis in original). But the government omits that North concluded that "the District Court erred in its handling of North's section 6(f) motion." Id. at 901-02. The majority found the error harmless, however (again over strong dissent) because "North fail[ed] to demonstrate how he was surprised or prejudiced by prior unawareness of any of the evidence presented by the [government] at trial to 'refute' his defenses." Id. at 902; see id. at 936-37 (Silberman, J. dissenting). Thus, North cuts squarely against the government's position here. -- page 5 -- violate Mr. Libby's right to due process under Wardius and its progeny, including Bahamonde. In accordance with Weaver and Zadvydas, the Court should not interpret the statute is a way that subjects it (at a minimum) to "grave doubts" about its constitutionality. II. RECIPROCAL DISCLOSURE SERVES THE INTERESTS OF FAIRNESS The government seeks to bring itself within the "interests of fairness" exception to the CIPA Sec. 6(f) reciprocal disclosure requirement on the premise that Mr. Libby "obtained almost all of the classified information in question from the government in discovery." G. Opp. 8. The government's premise is wrong. Through the narratives in his Consolidated CIPA Sec. 5 Notice, Mr. Libby provided the government with the overwhelming majority of the classified information in Topics 2 and 3 (enhancing the United States defenses for homeland security and nuclear proliferation by Pakistani scientist A.Q.Kahn and efforts by the United States to stop his activities) and with much of the classified information in Topic 1 (threatened attacks on America and American interests by Al Qaeda, Hezbollah, and other terrorist groups). The bulk of the classified information that the Court has found relevant and admissible on the other topics appears either in the narratives or in Mr. Libby's notes, which he created and which the government could not even interpret without the defense transliterations. And the defense provided the government with the classified information in defense counsel's proffers, which link the classified information in Mr. Libby's CIPA Sec. 5 narratives and documents to his theory of defense. The government can fairly be said to have provided only the classified information in the morning intelligence briefing materials, and even that information had previously been disclosed to Mr. Libby and was produced in response to a defense discovery motion. -- page 6 -- Thus, Mr. Libby has not merely repeated back to the government classified information that the government itself provided. He has, in the words of then-Assistant Attorney General Heymann, "really ... [reveal[ed] his case ... really told [the government] where h is going, what he is going to do, how he is going to try to prove it. " HPSCI Hearings at 31. Under these circumstances, as even Mr,. Heymann acknowledged n behalf of the DOJ, reciprocal disclosure serves the interest of fairness. Invocation of the "interests of fairness" exception to the reciprocal disclosure requirement of CIPA 6(f), under the circumstances of this case, would violate both Congress' intent and Mr. Libby's right to due process under Wardius and its progeny. CONCLUSION For the foregoing reasons, and for the reasons stated in Mr. Libby's initial memorandum, the Court should enter an Order (1) requiring the government to provide to the defense all information it expects to use to rebut the classified information that the Court has determined to be relevant and admissible under CIPA Sec. 6(a), and (2) placing the government under a continuing duty to provide such information. Date: December 4, 2006 -- page 7 -- -- page 8 --
The "relationship" to the above CIPA 6(f) reciprocal disclosure pleading is that back in September, Libby telegraphed some of the sorts of rebuttal evidence that he would like to preview. More particularly, to determine which witnesses the government plans to use to rebut Libby's "preoccupation" or "memory" defense; and what the nature of their testimony is apt to be.
Page 2 - At this stage, we cannot foresee all the ways that we may seek to use the listed classified information at trial. We do not know with certainty what witnesses the government will call, and the government has declined our request for disclosure of the Jencks/Rule 26.2 material for intelligence community witnesses before the Sec. 6(a) hearing. Thus, we cannot be certain what classified information will be necessary in the defense case to counter unexpected prosecution testimony. Nor can we predict with certainty what classified information we may use in questions on cross-examination of prosecution witnesses or seek to elicit through their testimony. And we do not know what questions the government will ask Mr. Libby or other defense witnesses on cross examination. Page 3 - The consolidated CIPA Notice includes all of the classified information that we reasonably expect to disclose at this point under any of these circumstances. Page 6 - PDB topic overviews and TTM entries comprise the morning intelligence briefing materials Page 8 - The first category of documents, those that Mr Libby created or reviewed, includes reports generated by the CIA relating to Niger and to Mr. Wilson's trip there. Many of these documents were faxed to Mr. Libby's attention on June 9, 2003, as alleged in the indictment. Mr. Libby testified that he frequently referred back to these reports if he "was going to talk to a reporter . . . about the Wilson trip." Libby Grand Jury Tr. 25, Mar 25, 2004. This category of documents also includes OVP memoranda analyzing the CIA reports and drafts of a public statement by Director of Central Intelligence George Tenet regarding the "sixteen words" controversy. Finally, the category contains certain of Mr. Libby's notes reflecting his conversations with other government officials about how to respond to Mr. Wilson's criticism. The second category, documents created or reviewed by other witnesses, includes notes and e-mails by or to CIA employees including government witnesses Robert Grenier and Craig Schmall, a memorandum prepared by the State Department's Bureau of Intelligence and Research that was reviewed by government witnesses Marc Grossman and (we believe) Ari Fleischer, notes of former CIA spokesperson Bill Harlow, notes of former Deputy National Security Advisor Stephen Hadley, and certain other documents.
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