No Easy Answers

Friday, November 17, 2006

Fitzgerald Response re: CIPA Legislative History (Paper 197)

     Case 1:05-cr-00394-RBW           Document 197         Filed 11/16/2006       Page 1 of 7

                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA                      )
                                              )       CR. NO 05-394 (RBW)
               v.                             )
I. LEWIS LIBBY,                               )
      also known as "Scooter Libby"           )


       The UNITED STATES OF AMERICA, by its attorney, PATRICK J.

FITZGERALD, Special Counsel, respectfully submits this response to the "Memorandum

of Defendant I. Lewis Libby on Legislative History of CIPA Substitution Provision"

(Defendant's CIPA Memorandum) filed on November 14, 2006. Defendant's CIPA

Memorandum provided selective quotes from the legislative history of the Classified

Information Procedures Act regarding the substitution standard in CIPA § 6(c)(1) and the

purpose of the government's ex parte affidavit under CIPA § 6(c)(2). The government

submits this response to reiterate that under CIPA, (1) the standard for assessing

substitutions under § 6(c)(1) is that the defendant has "substantially the same ability to

make his defense," and the government has met that standard; and (2) CIPA permits the

Court to use the ex part affidavit under § 6(c)(2) in balancing national security interests at

the § 6(c) stage. ^1

         Defendant's CIPA Memorandum states that Congress enacted CIPA to address the problem
of "graymail," and further states that "graymail" includes "`wholly proper defense attempts to obtain
or disclose classified information.'"Def. CIPA Memo. 1-2 (quoting Graymail Legislation: Hearings

     Case 1:05-cr-00394-RBW             Document 197         Filed 11/16/2006        Page 2 of 7


I.      The Standard Under CIPA § 6(c)(1)

        CIPA provides that a "court shall grant [the government's motion for substitutions

pursuant to § 6(c)] 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." CIPA § 6(c)(1). The legislative history of CIPA makes clear that

there is no requirement that the substitution be substantially similar to the classified

information itself:

        For example, where the defendant wished to show that he had access to a
        particular type of classified data, it should be sufficient for the government
        to admit that the defendant has had such access rather than forcing the
        introduction of the classified data in question.

S. Rep. 96-823, 1980 USCCAN 4294, 4302. The legislative history also makes clear that

the substitution standard is concerned solely with satisfying the right to a fair trial, not

with satisfying the defendant's desire to gain tactical advantages:

        [A]lthough the standard . . . for alternative disclosure, "substantially the
        same ability to make his defense," is intended to convey a standard of
        substantially equivalent disclosure, precise, concrete equivalence is not
        intended. The fact that insignificant tactical advantages could accrue to the

Before the Subcommittee on Legislation of the Permanent Select Committee on Intelligence of the
House of Representatives, 96th Cong., 1st Sess., at 4 (Aug. 7, 1979) ["HPSCI Hearings"]. Of course,
it is important to note that Congress also recognized that "graymail" includes the tactic of defendants
and their counsel to "press for the release of sensitive classified information the threatened disclosure
of which might force the government to drop the prosecution." Id. See also id. at 1 (noting that
graymail is when "an unscrupulous defendant [ ] threatens to publicly reveal all kinds of sensitive
information, even if it has no possible bearing on the issues of the case," so that the government will
be forced to dismiss the case).


     Case 1:05-cr-00394-RBW         Document 197       Filed 11/16/2006      Page 3 of 7

       defendant by the use of the specific classified information should not
       preclude the court from ordering alternative disclosure.

H. Rep. 96-1436, 1980 USCCAN 4307, 4310-11 (emphasis added) ^2 .

       The "substantially the same ability" standard in CIPA is just that: the substitutions

do not need to be precisely equivalent to the classified information; they merely need to

give the defendant substantially the same ability to put on his defense, which in this case

is to offer the evidence from which defendant can argue that he was so preoccupied with

other matters that he forgot or misremembered the conversations about which he is

charged with lying.

       In the guise of a discussion regarding the legislative history on the development of

the substitution standard under CIPA, Defendant's CIPA Memorandum falsely suggests

that the government's substitutions "completely eliminate whole areas of testimony that

the district court had found relevant and admissible," and "completely scripts the heart of

the defendant's own testimony in the guise of substitutions." Def. Memo. 6-7. The

government's substitutions do neither of these; in fact, the government's proposed

statement admitting relevant facts and proposed substitutions are above and beyond what

the framers of CIPA would have expected the government to propose for such sensitive

national security details, particularly since those details are not even being offered to

        In fact, in United States v. Moussaoui, 382 F.3d 453, 477 (4 th Cir. 2004), the Fourth
Circuit stated that substitutions offered by the government should be accepted by the court
"when it will not materially disadvantage the defendant," providing further support for the
notion that CIPA is not intended to be used to give defendants any kind of tactical advantage.


       Case 1:05-cr-00394-RBW       Document 197       Filed 11/16/2006      Page 4 of 7

prove the truth of the charged false statements in the case; rather, they are only being

offered to show the defendant's general "preoccupation" with other matters.

        An even more alarming assertion in Defendant's CIPA Memorandum ­ one that

completely controverts the purpose of CIPA and reveals defendant's true graymail

motivation ­ is the assertion that Congress' contemplation of an acceptable statement

admitting relevant facts would only be satisfied in this case if the government admitted

that "the national security matters were vastly more important to Mr. Libby than the

snippets of conversation concerning Valerie Wilson and thus caused him to confuse or

misremember those snippets when asked about them months later." Def. Memo. at 7.

The drafters of CIPA contemplated that the "statement admitting relevant facts" would be

a statement admitting relevant "facts," not a statement of conclusions the defense wants

the jury to draw. The government has offered a statement admitting relevant facts that

serves the purposes contemplated by CIPA, ^3 in addition to proposing detailed

substitutions for all of the relevant classified exhibits, and with those, the defendant has

"substantially the same ability to make his defense," just as the legislative history

indicates the drafters of CIPA would have intended.

III.    The CIPA § 6(c)(2) Affidavit

        As this Court has recognized, when considering substitutions during Section 6(c),

"a court must at bottom balance the government's national security interests in protecting

        See Government's Motion Pursuant to CIPA Section 6(c) For Substitutions In Lieu of the
Disclosure of Classified Information at 10.


     Case 1:05-cr-00394-RBW         Document 197        Filed 11/16/2006    Page 5 of 7

classified information against the defendant's ability to put on his defense." United States

v. Libby, 2006 WL 3262446, *5 (D.D.C. November 13, 2006); see also United States v.

Zettl, 835 F.2d 1059, 1067 (4 th Cir. 1987) ("that such is clearly the case is shown by §

6(c)(2) providing for the filing of an affidavit of the Attorney General in §6(c)

proceedings, which affidavit explains the basis for the classification of the information

sought to be disclosed and that the disclosure would cause identifiable damage to the

national security of the United States."); United States v. Juan, 776 F.2d 256, 258 (11 th

Cir. 1985) ("in passing upon a motion under Section 6(c) the trial judge should bear in

mind that the proffered defense evidence does involve national security").

       The legislative history supports this need for balancing: in a joint report to

Congress regarding the final version of the bill, members of the House and Senate

explained that otherwise relevant evidence can be excluded at the Section 6(c) stage. H.R.

Conf. Rep. No. 96-831, at 9 (1980). If the court were not permitted to balance national

security interests against a defendant's right to make his defense, there would be no basis

for the court to exclude relevant evidence at the Section 6(c) stage, as contemplated by

the joint report. That does not mean that the defendant is to be deprived of a fair trial or

"substantially the same ability" to make his defense.

       In fact, during the Section 6(a) hearings, even defendant admitted that balancing of

the government's right to hold people accountable for criminal activity and not subvert

the process through graymail is proper at the Section 6(c) stage: [by Mr. Cline:] "And I


     Case 1:05-cr-00394-RBW         Document 197       Filed 11/16/2006     Page 6 of 7

think when we get to the substitution phase, that is where Congress sought to find a way

of balancing these needs.'" 9/27/06 Tr. 31. Now that the Court is at the 6(c) stage,

defendant conveniently seeks to avoid such balancing.

       The CIPA §6(c)(2) affidavit provides the Court with information it needs to

conduct the necessary balancing. As the Eleventh Circuit has noted, "[w]hat may appear

to the court to be innocuous may be dangerously revealing to those more informed. . . .

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." Id. at 258-59. The § 6(c)(2) affidavit

enables the government to set forth in detail the ramifications that could result from

disclosure of the information the defendant is seeking to disclose, and it is entirely

appropriate under CIPA for the Court to use that information to conduct the balancing

necessary to determine the adequacy of the government's proposed substitutions.

                                                  Respectfully submitted,

                                                  PATRICK J. FITZGERALD
                                                  Special Counsel
                                                  1400 New York Ave., N.W.
                                                  Washington, D.C. 20005
                                                  (202) 514-1187

Dated: November 16, 2006.


     Case 1:05-cr-00394-RBW           Document 197        Filed 11/16/2006      Page 7 of 7

                                CERTIFICATE OF SERVICE

       I, the undersigned, hereby certify that on this 16th day of November, 2006, I caused true

and correct copies of the foregoing to be served on the following parties:

                          William Jeffress, Esq.
                          Baker Botts
                          The Warner
                          1299 Pennsylvania Avenue, N.W.
                          Washington, DC 20004-2400
                          Facsimile: 202-585-1087

                          Theodore V. Wells, Esq.
                          Paul Weiss
                          1285 Avenue of the Americas
                          New York, NY 10019-6064
                          Facsimile: 212-373-2217

                          Joseph A. Tate, Esq.
                          Dechert LLP
                          4000 Bell Atlantic Tower
                          1717 Arch Street
                          Philadelphia, PA 19103-2793
                          Facsimile: 215-994-2222

                          John D. Cline, Esq.
                          Jones Day
                          555 California Street
                          San Francisco, CA 94104
                          Facsimile: 415-875-5700

                                                     Patrick J. Fitzgerald
                                                     Special Counsel
                                                     U.S. Department of Justice
                                                     10th & Constitution Ave., NW
                                                     Washington, D.C. 20530

                                             By:       /s/ Kathleen M. Kedian
                                                       Deputy Special Counsel



^_~ ~_^

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