No Easy Answers

Tuesday, November 28, 2006

Fitzgerald Response to Motion for Reciprocal Disclosure [Doc 208]

    Case 1:05-cr-00394-RBW           Document 208         Filed 11/28/2006      Page 1 of 10

                             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"           )

                  DISCLOSURE UNDER CIPA § 6(f)

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

Counsel, respectfully submits this Response to the Defendant's Motion for Reciprocal Disclosure

under Section 6(f) of the Classified Information Procedures Act ("CIPA"), 18 U.S.C. App. III.

       As discussed below, the plain language of Section 6(f) only requires the government to

provide discovery of information that the government "expects to use to rebut the classified

information" that the defendant will offer at trial, CIPA § 6(f) (emphasis added), and does not, as

the defendant attempts to more broadly recast it, require the government "to identify the evidence

it will use to rebut the memory defense," Def. Mot. at 4 (emphasis added). When interpreted in the

sole way that its text permits, the government currently has no information to provide under Section

6(f) because the government does not expect to dispute the veracity or accuracy of "the classified

information" that the defendant plans to offer at trial in support of his memory defense.


       The defendant has obtained from the government in this case extensive discovery of

classified information. This information includes a full and complete set of the defendant's own

notes from time periods deemed relevant by the Court; detailed summaries of Presidential Daily

Briefs and Terrorist Threat Matrices received and/or reviewed by the defendant during periods of

    Case 1:05-cr-00394-RBW            Document 208         Filed 11/28/2006     Page 2 of 10

time deemed relevant by this Court; pertinent classified documents from the White House, the CIA,

the State Department and the Department of Defense; and copies of documents in the possession of

the Special Counsel obtained by subpoena or otherwise from the Office of the Vice President. Most

of the extensive classified discovery, and certainly the most sensitive information among the

classified discovery, only relates to the defendant's "memory" defense.

       On August 15, 2006, the defendant submitted his consolidated CIPA § 5 Notice to the Court

setting forth the classified information he reasonably expected to disclose at trial. The Notice, as

amended, now consists of nine topic areas of classified information described by three ways: a

narrative, which counsel proffered would be used by the defense to introduce each topic, a listing

of classified documents (exhibits) containing specific classified information which counsel

represented would be used to flesh out the relevant topic area; and proffered testimony concerning

the narratives and exhibits. Every exhibit identified by the defendant in his Notice was obtained

from the government in discovery, and each narrative, as well as the proffered testimony, draws

from the defendant's review of this discovered information, with limited exceptions.

       During the course of the Section 6(a) relevancy hearings, the defendant withdrew from the

Court's consideration over 300 of the classified exhibits he had identified in his Section 5 Notice,

with the representation that the defense would not seek to elicit detailed testimony about these

documents but instead would present them to the jury in summary form as dots on a chart. With

some redactions, most of the remaining exhibits and all of the narratives and proffered testimony

were held to be relevant to the defendant's memory defense and ruled admissible. The defense has

not yet provided a final copy of its chart for the Court to rule on.


    Case 1:05-cr-00394-RBW             Document 208         Filed 11/28/2006        Page 3 of 10

        The CIPA Section 6(c) proceedings are still ongoing, with a number of issues still

unresolved. The Court has indicated that it will not impose a standard whereby the government is

required to produce a substitution or statement for every individual item of classified information

that the Court has ruled relevant and admissible. Instead, the Court has stated that it will look at the

totality of the information made available by the government in assessing whether the proposed

substitutions provide the defendant with substantially the same ability to make his defense as would

disclosure of the underlying classified information. In keeping with these tentative holdings, the

government will be requesting the Court at the upcoming CIPA Section 6© hearing to preclude the

defendant from testifying about certain limited, discrete facts which the court previously ruled were

relevant and admissible.

        Throughout the CIPA proceedings the government has maintained that it will not challenge

the defendant's contention that he was busy on important national security issues during the periods

of time deemed relevant by the defense. Significantly, the government has further represented that

it does not intend to challenge the accuracy and veracity of the specific items of sensitive intelligence

that the Court may permit the defendant to disclose in connection with his preoccupation defense.

Indeed, given that most, if not all, of the classified information will be offered by the defense for the

effect it may have had on the defendant's state of mind, rather than for the truth of the matters

asserted, the accuracy of the information is not at issue. ^1 Nor does the government expect to drag

           Defendant has consistently represented that the memory-related documents are relevant to
establish the defendant's state of mind and not to prove the truth of the matters asserted. See e.g.
Def.'s Doc. No. 146 ("The statements by others reflected in Mr. Libby's notes will not be offered
for the truth of the matters asserted and thus constitute nonhearsay under Rule 801(c). . . . [I]f a
Libby note reflects a CIA official describing intelligence about a terrorist threat against the United
States, it is irrelevant whether the official's statement is true or false, accurate or inaccurate. The
relevance of the statement lies solely in the fact that it was made and the resulting effect it had on


     Case 1:05-cr-00394-RBW           Document 208        Filed 11/28/2006       Page 4 of 10

out either the pre-trial proceedings or the trial itself by conducting trials-within-trials over the

accuracy of the classified information.

       It is against this backdrop that the defendant now seeks an order from the Court under CIPA

6(f) for disclosure of all evidence that rebuts the "memory defense." Def. Mot. at 4.


I.     CIPA Section 6(f) Requires Disclosure Only of Information Used to Rebut The
       Classified Information.

       Section 6(f) of CIPA provides in relevant part:

       Whenever the court determines pursuant to subsection (a) that classified information
       may be disclosed in connection with a trial or pretrial proceeding, the court shall,
       unless the interests of fairness do not so require, order the United States to provide
       the defendant with the information it expects to use to rebut the classified

18 U.S.C. App. III, § 6(f) (emphasis added). By its express terms, Section 6(f) authorizes the court

to order disclosure only of information that the government expects will rebut "the classified

information" that the defendant will offer at trial. In other words, Section 6(f) makes no mention of

a requirement that the government disclose information that would rebut defenses generally rather

than classified information specifically.

       Without any supporting legal authority for expanding the terms of Section 6(f), the

defendant's motion for reciprocal disclosure demands that the government "identify the evidence it

will use to rebut the memory defense," Def. Mot. at 4 (emphasis added), not just information that

would rebut "the classified information," CIPA § 6(f). By making this demand, the defendant

attempts to recast Section 6(f) as an omnibus reciprocal disclosure provision, which it is not. The

Mr. Libby's state of mind.")


    Case 1:05-cr-00394-RBW            Document 208        Filed 11/28/2006       Page 5 of 10

court's authority under Section 6(f) begins and ends with information that will rebut "the classified

information." That the statute does not permit the court to enter an order requiring the government

to disclose all information rebutting a `defense'should not be at all surprising; CIPA's purpose was

to provide a framework by which the court deals with classified information, and was not intended

to radically expand the defendant's access to the government's trial strategy. The D.C. Circuit

recognized these principles in United States v. North, 910 F.3d 843, 902 n.41 (D.C. Cir. 1990),

modified on other grounds, 920 F.2d 940 (D.C. Cir. 1990), specifically endorsing that the exchange

of information will not be precise and that Section 6(f) has no constitutional defect:

       CIPA was specifically designed to minimize the need to "forego [ ] prosecution of conduct
       [the government] believed to violate criminal laws in order to avoid compromising national
       security information." Discovery proceedings under CIPA, therefore, 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. Wardius, 412 U.S. at 475. In these circumstances,
       the Dissent's repeated invocations of Wardius . . . ­ in which the Court considered a state
       rule precluding reciprocal discovery by the defense without any countervailing state interest
       ­ are misplaced. Here, unlike the situation in Wardius, the "State's inherent
       information-gathering advantages," id. at 475 n.9, are matched by the defendant's
       opportunities for engaging in "greymail" to derail legitimate prosecutions.

Id. at 902 n.41 (citation omitted).

       Accordingly, by its terms, Section 6(f) is limited to evidence that the government intends to

use to rebut specific classified information found to be disclosable at trial under Section 6(a). As

applied here, the government has repeatedly stated that it does not intend to challenge the accuracy

or veracity of the classified information that this Court has ruled relevant and admissible. For

example, if the defendant testifies that it was reported to him that a particular foreign nation was

attempting to become a nuclear power, the government does not expect to present information that

challenges the accuracy of that report. So too with any other classified information that the


      Case 1:05-cr-00394-RBW           Document 208         Filed 11/28/2006        Page 6 of 10

defendant presents for the impact on his state of mind. ^2 Thus, the government currently has no

information to provide pursuant to Section 6(f). ^3 If for some reason the government later develops

an expectation that it will rebut the accuracy or veracity of classified information offered by the

defendant, the government will disclose that information pursuant to Section 6(f)'s continuing duty

to disclose, or if appropriate, seek a ruling from the Court permitting it not to disclose.

II.     The "Interests of Fairness" Do Not Require Any Reciprocal Disclosure.

        Separate and apart from the absence of any dispute over the classified information, and even

if Section 6(f) somehow could be interpreted to require disclosure of information rebutting the

memory defense generally, Section 6(f) does not require disclosure of information where the

"interests of fairness" do not require it. 18 U.S.C. App. III, § 6(f). The legislative history of Section

6(f) shows that Congress did not intend to require yet additional government disclosure of

information where it was the government that, in the first instance, already provided the classified

information that the defendant is using against the prosecution.

         The defendant's use of classified information in this case starkly differs from the use made
by the defendant in North. In North, the defendant was not using classified information to present
a memory defense; rather, the classified documents, which were either written by or sent to North,
were "directly relevant to the case." 901 F.2d at 399-400. Thus, the government's rebuttal evidence
in that case did in fact rebut the accuracy of the classified information, whereas in the instant case,
the classified information's accuracy is simply not at issue.

        To be clear, the government does reserve the right to challenge any overstatements that the
defendant makes concerning the impact of the classified information on the defendant's
preoccupation or memory. For example, if the defendant testifies that certain information caused
him great concern because it was the first time he had heard that information, the government
reserves the right to show that it was not the first time defendant had heard that particular
information; such a showing is not, under Section 6(f), a rebuttal to the classified information. The
defense has represented that it will not overstate the extent to which any classified information was
new. The government obviously cannot determine in advance of defendant's testimony the extent
to which it will need to provide evidence to challenge any overstatements.


    Case 1:05-cr-00394-RBW              Document 208         Filed 11/28/2006         Page 7 of 10

        The phrase, "unless the interests of fairness do not require," was added to CIPA's reciprocity

provision as a result of concerns expressed by then-Assistant Attorney General Phillip Heymann

about a similar disclosure provision in an earlier version of the bill. That earlier version required the

government, without exception, to provide the defendant with evidence rebutting "particular

classified information" ruled admissible by the court. See Section 107 of H.R. 4736, Classified

Information Criminal Trial Procedures Act, (96th Cong., 1st Sess. 1979). In objecting to this

requirement, Mr. Heymann made the following observation:

        If you move to basic fairness in questions of reciprocity, remember that in most cases the
        defendant is going to be tendering a document we gave him in discovery as something he
        wants to use at trial. The notion of reciprocity [as articulated in the bill] is that the defendant
        is revealing his secrets, his case, and [so] the Government ought to [be required] to [reveal]
        its secrets, its case. [However], in most of the situations we [will be] dealing with here, the
        defendant is going to have obtained from the Government during discovery, documents
        which are secret. There will then be this proceeding where the defendant will then say I want
        to use this document that the Government gave me at trial. If the judge rules that it can be
        used at trial, your bill, Mr. Chairman (Congressman Murphy), and Senator Biden's bill then
        requires us to come in and reveal more information, anything that goes to show that we are
        going to rebut it, in fairness to the defendant. But remember, the document that the defendant
        revealed came from us. It is our document that we gave to the defendant to help his case. It
        is our information that was given to the defendant in fairness to him as required by law that
        he has now said he would like to use. It hardly seems that equity requires us then to provide
        an additional amount of information to show how we are going to rebut the effect of our own

Hearing on Graymail Legislation before the Permanent Select Committee on Intelligence, p. 24

(August 7, 1979).

        Mr. Heymann went on to explain how the Federal Rules of Criminal Procedure already

required the government to turn over to the defense in discovery all documents the government

intended to use at trial as well as documents helpful and material to the defendant's case. He

concluded by noting that "[o]ur case is largely exposed by discovery, by the indictment, and by


    Case 1:05-cr-00394-RBW            Document 208        Filed 11/28/2006       Page 8 of 10

normal bills of particulars," and he questioned the wisdom and fairness of an additional discovery

obligation. Id. at 24-27.

       Based in large measure on the concerns expressed by Mr. Heymann, H.R. 4736 was amended

to add a new subsection to the previous bill's reciprocity provision. That subsection, Section

107(d), provided:

       The provisions of this section shall not apply to classified information provided by the
       United States to the defendant pursuant to a discovery request, unless the court determines
       that the interests of fairness so require.

H.R. 4736, Section 107(d) (96th Cong., 2nd Sess. 1980). Section 107 ultimately was replaced by

current CIPA Section 6(f) and the provisions of subsection 107(d) were condensed into Section 6(f)'s

current phrase, "unless the interests of fairness do not so require." In commenting on this language,

the House and Senate conferees observed:

       The conferees agree that the reciprocal provision of information by the government to the
       defendant may not be "in the interests of fairness" in cases where the defendant has received
       the classified information in question from the government by discovery.

House Conference Report No. 96-1436, at 12-13 (1980). Accordingly, under CIPA 6(f) disclosure

of information is hardly a matter of right and should not be ordered as a matter of course in cases

where, as here, the defendant has obtained almost all of the classified information in question from

the government in discovery.

       Moreover, the interests of fairness do not weigh in favor of yet more pre-trial disclosures

where the purported tactical disadvantages of which the defendant complains, Def. Mot. at 3 ("CIPA

has compelled Mr. Libby to make a detailed presentation concerning the core of his defense"), is

illusory. It is not as if the government learned for the first time during the CIPA proceedings that

the defendant would assert a memory defense. From the start of the defendant's discovery requests,


    Case 1:05-cr-00394-RBW             Document 208         Filed 11/28/2006       Page 9 of 10

discovery motions, and proposed expert testimony, it was no mystery that the defendant was going

to assert that he was busy, that he worked on national security matters, and that any misstatements

were due to faulty memory. Indeed, there was significant litigation over the extent that the

Presidential Daily Briefs and the Terrorist Threat Matrices would be discoverable. CIPA simply

required the defendant to notify the government and the Court as to what classified information he

was going to rely on ­ almost all of which turned out to be information that the government itself

provided in discovery. Furthermore, the playing field is also leveled because the government's

theory of the case, including the general parameters of its rebuttal case, has been aired repeatedly and

in some detail during the course of the CIPA proceedings.


       For the foregoing reasons, the government does not object to entry of an order that requires

the disclosure of information that it expects to "rebut the classified information" that the defendant

will offer at trial, as CIPA Section 6(f) requires. Currently, however, no such information is

expected to be used because the government does not expect to dispute the accuracy or veracity of

the classified information.

                                                       Respectfully submitted,

                                                       PATRICK J. FITZGERALD
                                                       Special Counsel

                                                       Office of the United States Attorney
                                                       Northern District of Illinois
                                                       219 South Dearborn Street
                                                       Chicago, Illinois 60604
                                                       (312) 353-5300

Dated: November 28, 2006


    Case 1:05-cr-00394-RBW          Document 208         Filed 11/28/2006      Page 10 of 10

                                CERTIFICATE OF SERVICE

       I, the undersigned, hereby certify that on this 28th day of November, 2006, I caused true and

correct copies of the foregoing to be served on the following parties by first class mail and


                          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/ Peter R. Zeidenberg
                                                       Deputy Special Counsel


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