No Easy Answers

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.

Libby To Testify At Trial - September 22, 2006
Memorandum Concerning Admissibility of Documents on Consolidated CIPA Sec. 5 Notice [Doc 146 (pdf)]

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.

posted by cboldt  # 12/04/2006 09:43:00 AM