News Intelligence Analysis
March 11, 2006
Judge Tries Compromise on Briefs
Libby Is Seeking
By NEIL A. LEWIS
WASHINGTON, March 10 — A federal judge ruled on Friday that
I. Lewis Libby Jr. was entitled to review a limited amount of
information from highly classified intelligence documents in
order to defend himself against charges that he lied about his
role in disclosing the identity of a C.I.A. operative.
Confronted with a legal issue that has the potential to sabotage the prosecution of Mr. Libby, the judge, Reggie B. Walton, sought a compromise to allow the case to go forward.
To accommodate the government's reluctance to turn over sensitive documents as well as Mr. Libby's claim that without them he would be unfairly hampered in mounting a defense, Judge Walton told prosecutors to turn over a listing of the "general topics of the matters" involving intelligence that were given to Mr. Libby when he was chief of staff to Vice President Dick Cheney.
The judge ruled that the documents could be something like the tables of contents of the President's Daily Brief, and that Mr. Libby need not be given those highly classified documents as he had sought.
Moreover, Judge Walton said the government should turn over only 46 days of those topic summaries. Mr. Libby's lawyers had initially requested the full copies of the President's Daily Briefs for nine months.
Mr. Libby has been charged with lying to the F.B.I. and to a grand jury about his role in the disclosure of Valerie Wilson's identity as a Central Intelligence Agency operative. His lawyers have outlined an argument that if he had given false information under oath about his role in disclosing Ms. Wilson's identity, it was unintentional and only because he was busy with weightier matters.
Theodore V. Wells Jr., his chief defense lawyer, argued that Mr. Libby needed the President's Daily Briefs to refresh his memory and to add substance to his argument that he was "so focused on urgent national security matters, it is hardly surprising that he would later confuse, forget or misremember" conversations with reporters about Ms. Wilson.
The ruling does not necessarily mean that Mr. Libby's lawyers can share with the jury all the information they are provided, or otherwise make it public.
Judge Walton said Mr. Libby's defense team did not need the complete copies of the President's Daily Brief, a memorandum of the secret briefings given six days a week in various forms to the president, the vice president and a handful of other officials.
"The defendant does not need the explicit details of the intelligence documents he desires to obtain," Judge Walton wrote. "The general topics of the documents would provide the defendant exactly the information he seeks, listings of the pressing matters presented to him during the times relevant to the case."
Judge Walton also said the government need supply only the summaries from June 7 to July 14, 2003, which is the period in which Mr. Libby spoke to three reporters, and for the two days before and two days after his appearances before the grand jury and his interrogation sessions by the F.B.I. He also ordered that Mr. Libby be given general information about his inquiries to intelligence officials.
The disclosure of Ms. Wilson's role with the C.I.A. in a column by Robert D. Novak on July 14, 2003, produced an investigation by Patrick J. Fitzgerald, who was named a special prosecutor by the Justice Department.
Mr. Libby told investigators and the grand jury that information he might have shared about Ms. Wilson with Judith Miller, then a reporter for The New York Times, and Matthew Cooper of Time magazine had come to him from Tim Russert of NBC News. Mr. Russert has testified that he never discussed Ms. Wilson with Mr. Libby.
Critics of the Bush administration have asserted that the destruction of Ms. Wilson's undercover status was an act of retaliation against her husband, Joseph C. Wilson IV. Mr. Wilson, who had been sent on an official fact-finding mission to Niger, wrote in an Op-Ed article in The New York Times that the Bush White House had lied when it propagated information that Saddam Hussein had been engaged in trying to import uranium from that country.
Mr. Fitzgerald had argued that the request from Mr. Libby's lawyers to obtain months of the President's Daily Brief was "a transparent effort at 'graymail,' " a technique in which defense lawyers demand highly sensitive information from the government to force the prosecution to choose between providing the material or dropping the case.
Mr. Fitzgerald described the President's Daily Brief as the most valuable of government intelligence documents. Tom Blanton, the executive director of the National Security Archive, a private group that challenges secrecy decisions of the government, said in an interview that their sensitivity was often overstated.
Despite government assertions that only one such document has been disclosed, about a dozen have been partially released over the years, Mr. Blanton said.
He said that they were often banal and that the government's desire to keep them secret was less about protecting secrets than maintaining their mystique.
Copyright 2006The New York Times Company
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