No Easy Answers

     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.

     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

posted by cboldt  # 6/02/2006 10:12:00 PM