Jeff has kindly sent over Judge Walton's November 15 CIPA ruling (4MB), which was declassified and released Friday. This is the ruling the one that Fitzgerald is appealing.
Walton lays out his ruling carefully. There are two kinds of information at issue: (a) information supporting Libby's argument that he is so important that he can't be expected to remember the details of the covert spy's lives he has ruined, and (b) information supporting Libby's argument that he was responding to Wilson's "findings regarding Iraq's relationship with Niger" on the merits, and not trying to out a CIA NOC.
Libby's I'm Too Important to Remember Outing a Spy Defense
This is the bit pertaining to Libby's PowerPoint Dots defense. He wants to take 9 topics, show how important they were, show how "consumed" he was with them, and therefore argue that remembering something as petty as outing a spy would just be too much to ask.
One key aspect to Walton's ruling regards timing. Libby can only introduce info on his 9 topics for periods that are actually relevant to his memory defense. Walton starts by naming the events that should be relevant to that defense. Those dates, which Walton pre-limits to the time period May 6 2003 (Kristof's column) to March 24 2004 (Libby's second grand jury appearance) are:
- The period beginning around June 9 2003 when Libby was doing oppo research on Wilson (note, this doesn't include the time he asked Grossman for information, and it may exclude the time period when someone asked CIA for the information they received on June 9)
- Leak week defined as July 6 2003 through July 12 2003 (note, this does not include any conversations Libby had just preceding leak week, such as his conversation with David Sanger on July 2, and more importantly, it does not include the date of the Novak column, nor, apparently, the CIA officials telling Libby how bad it was that Plame got outed, nor the inquiry Libby made of Addington as to the definition of "covert")
- The day of Libby's first conversation with Judy, June 23 2003
- The days of his FBI interviews and grand jury appearances (October 14 2003, November 26 2003, March 5 2004, and March 24 2004)
That second bullet--the times after Novak's column when Libby considered the implications of the leaks--is the most problematic, as Fitzgerald will point to those dates to prove that, by the time he first spoke to the FBI in October 2003, he knew he was in deep shit, so lied his ass off.
Then there are four more dates which Libby will testify about. As Walton acknowledges,
[T]he Court recognizes that particularly significant events occurring during the period of time between the defendant's conversations with the various news reporters and his conversations with the FBI agents and his testimony before the grand jury could impact his memory and perception of those conversations. Accordingly, the defendant has proffered a limited number of events, supported by information contained in classified documents, which he believes fall into this category. Specifically, during the Section 6(a) proceedings, the defendant proffered four dates on which events occurred that were of such significance that he believes could have caused him to misremember his conversations with various news reporters and administration officials. According to the defendant, such events occurred on or around July 29, 2003; August 20, 2003; November 21, 2003; and late-December, 2003.
These might be related to events in the case, though the language suggests otherwise. I think they're big scary days that Libby wants you to be impressed by. You know, like maybe Libby was personally interrogating Saddam (who was captured on December 15) during late December? Assuming I'm reading these correctly, and these are really scary important events. Any idea what they are?
(Presumably) Presidential and Vice Presidential Daily Briefings
The first issue Walton addresses is redacted heavily, though it appears to relate to Presidential and Vice-Presidential Daily Briefings (this is section 1, from page 18 to 23). This is all speculation, but it appears that Libby argued that he treated information he received in Daily Briefings with more importance than he did the information he received from other sources. And since that addresses the issue of state of mind, Walton will allow him to introduce those topics. However, to prevent the jury from getting all starry-eyed over top secret Vice Presidential Daily Briefings, Libby is not allowed to say the information came from those documents.
Walton goes further to limit some types of information included in the documents. He says Libby cannot name a bunch of evil scary terrorist groups, since those names will be meaningless to a jury of ordinary folks, and therefore it would distract them. But Libby is allowed to mention famous names. Therefore, expect Libby's defense to go something like, "And then we talked about the very scary and dangerous Al Qaeda that threatens the US. Then we talked about the evil evil evil Hezbollah. Then we talked about scary dictator Saddam Hussein." Hell, why not. Scaring the American people worked up until November 7 2006. Why not take it out for one more spin.
Then there's the issue of the "topic summaries"--the nine things Libby says he was "consumed" by, which caused him to forget he had outed a CIA spy. The topics are (with Walton's exclusions, as much as I can discern):
- Threatened attacks on America and American interests by Al Qaeda, Hezbollah, and other terroist groups: Walton repeats his ruling restricting Libby to known scary terrorist threats.
- Enhancing the US defenses for homeland security: Walton seems to limit Libby from talking about a shortage of (again a guess) smallpox vaccines--in any case, it's some sort of shortage.
- Nuclear proliferation by Pakistan scientist A. Q. Khan and efforts by the US to stop his activities: Walton seems to restrict Libby's mention of scary sounding groups again; there's one other restriction. Who knows? Maybe Walton is preventing Libby from talking about Plame's involvement in non-proliferation activities? (Just joking, perhaps.)
- The development of nuclear weapons by North Korea: Walton makes one modication.
- Iran's development of nuclear weapons, its arrest and potential harboring of Al Qaeda members, and its involvement in Iraq: Walton agains largely permits this.
- The proper size and role of the Iraqi military and security forces in the months following the fall of Saddam Hussein and the proper composition of the governing entity in Iraq: It seems that Libby is trying to introduce evidence outside the time frame Walton has already established, which is not surprising. Seems like he wanted to talk about installing Chalabi and de-Baathification and his fight with CIA and State. Clever, Scooter, but Walton's not buying it.
- The Israeli-Palestinian relationship, including the emergence of Mahumoud Abbas (Abu Mazen) as an alternative to Yasser Arafat and the threat Hamas posed to peace and security: Everything goes on this topic.
- A tense diplomatic crisis arising during the first half of July 2003 from the arrest of Turkish soldiers by US forces: Walton allows everyhting with this topic.
- The unrest in Liberia in June and July 2003, culminating in the fall of Charles Taylor in early 2003; the danger to the US Embassy and its occupants in Monrovia; and the United States' role in protecting civilians caught in the strife: everything goes (though I'm curious about the timing...)
Basically, it seems like Libby can give a watered-down history of then-current scary events, but not use little-known names.
Walton then goes onto examine individual documents, which mostly entails Libby's notes, which he describes:
Almost without fail at the top of each set of his notes, the defendant has written the date and time of the meeting, the location, who was present (and whether those present constituted, for example, the National Security Counsel, the War Council, the Principal's Committee, or the Deputy's Committee), and how the individuals participated in the meetings (live or via secure video conferencing).
Walton will exclude all detail except the date and time of the meeting; he's not going to let Libby say, "look at me!! I'm IMPORTANT! And look at the internal workings of power in the US!! Did you know that I always sit closer to Bush than Hadley did??"
I'll come back to these notes some other time. But for the moment, can I just observe that Scooter Libby has better standards of note-taking than just about any journalist involved in this case?
Walton leaves open the question of whether Libby can introduce statements made by Administration officials. He pretty much blanket allows comments made by Dick, since as Libby's supervisor, those comments would have a direct impact on Libby's state of mind. Libby seems to want to introduce some Condi and Tenet statements, which he will have to prove admissibility on on a case by case basis. Then Walton goes on to limit certain names and details, again on the basis that they'd confuse the jury.
Information on Joe Wilson
Well, isn't that funny? This section contains significantly more redactions, almost an enitre half-page relating to Wilson.
Actually, as Walton notes, there is only one major dispute at the time of his ruling. That is "the defendant's task list for June 10, 2003." This is the day between when Libby received the CIA documents and when Grossman breifed on the contents of the INR memo (and it also happens to be the date of the INR memo). We don't know the substance of the objection because the substantive discussion is almost entirely redacted. But Walton does go on to disallow some discrete detail about that day, again, something that would distract the jury. Presumably there is something else relevant to Wilson's trip that Walton believes would distract the jury.
Why Is Fitzgerald Appealing?
So that's it. That's where Walton leaves the graymail case.
I can't really tell whether Fitzgerald is appealing the inclusion of a specific document or something mroe general, though it appears I was wrong--he's not appealing the inclusion (or not) of Wilson's trip report in trial discussions. Could be the report was disallowed or it's the report Fitzgerald and Libby's team are arguing substitutions for.
Walton doesn't give us much to go on, to figure out why Fitz is appealing. Footnote 13 tells us that he will only describe what Libby doesn't get, we don't get to know what he has approaved against the wishes of Fitzgerald:
With the exception of instances described in this opinion where the Court does conclude that certain pieces of classified information should be excluded, the Court finds no need to discuss the government's objection on a document-by-document basis where its objection cannot be sustained.
Then again in Footnote 18, Walton explains that he's not going to refer to Fitzgerald's multiple objections.
The record in this case details, often times at great length, the various government objections to the defendant's request to use the classified documents and information. The Court has largely addressed all of the objections raised by the government. Accordingly, the Court finds no need to repeatedly set forth the government's document-by-document objection unless the objection has merit.
So we only get to know what was left out, not what got put in. The best description of an ongoing dispute is this:
[T]he government has set forth in detail its objections to the narrative summaries, which largely challenge the detail contained in the narrative summaries and the amount of classified information the defendant seeks to introduce.
That may be all of it--Fitzgerald just thinks Walton has been overly broad in his decisions about what Libby should be able to introduce. Can I just say that if I ever get to cover this trial, I can't decide whether I'd want to be there fore Libby's PowerPoint Dots Defense so I could snark at its content (and I'll be commenting on those nine topics shortly, trust me), or whether I'd just be BORED. Neocons have already failed on just about all of those 9 topics, I don't know why anyone should have to sit through Libby's description of how important he was in those failures. Apparently, Fitzgerald doesn't know either.
One of my favorite parts of the ruling was a footnote on page 3 describing all the material submitted to Walton to be ruled on. As you can imagine, I've got a lot of info on Plame lying around my office: a binder of Plame reporting from 2003-2004, a binder from 2005-2006, a binder on Judy, a binder on CIA stuff, a binder on the actual Phase II report, a binder on intell that should have been in the Phase II reports, binders for each of the three main WMD claims, and a binder of official documents and filings. Well, now Walton's in the same boat, it seems. He's got:
- 4 binders from Libby on something largely redacted, but what I guess is the Vice Presidential Daily Briefing stuff he wants to use in his memory defense
- 1 binder containing something else redacted, submitted by Fitzgerald
- 1 binder containing materials that Fitzgerald doesn't object to Libby introducing
- 1 binder of proposed government exhibits
- 1 binder containing info relating to Wilson's trip
- 1 binder containing Libby's unclassified daily schedules
- 1 binder containing the 100 documents Libby wants to disclose at trial
- 1 binder containing more proposed government exhibits
By my count, Walton got 11 binders, and I've got just 10, so I guess I gotta get me another binder and fill it with something. Binder envy, you know. Any suggestions?