CIPA Fun

by emptywheel

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.

Topic Summaries

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.

Individual Documents

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.

Walton's Library

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?

Comments

[katie Jensen]

hmm could it be a binder on ... The Source.

[John Lopresti]

I saw a parallel between some signing statements' 2003 publication dates and the four ew listed, one was the result of bartering over Halliburton's choice of a civil engineering subcontractor in Iraq. Also, I had hoped to leave a web address for a document the court site seemed to lose two days prior to the 38p MoO you linked; I let Swopa know at the time so you probably already viewed that, also a MoO though more procedural and less itemized and only 15p. I liked the judge's comparison of his austere responsibility to that of a comedian skit character in the 15th MoO. I have some historical data I should have organized on the timeframe you asked about. I will check back if I find something substantial, and will look in the emptybinders, or, more appropriately, the missingbinder.

[pow wow]

Very good recap, emptywheel. [I gave my own long run-down in Saturday night's Late Nite thread at FDL, focusing more on the Judge's handling of this, so won't repeat it here.]

For Binder #11: the Section 6(a) appeal may well fill one up [not to mention a possible 6(c) appeal to follow]...

[freepatriot]

Yo emptywheel:

I got a spare binder you could use

but you have to sign it, and give it back when this is done

then I could tell people I knew you when ...

(bowing and scraping)

we're not worthy

okay, maybe some of us are worthy

[hauksdottir]

Libby's lawyer doesn't understand ordinary people... the folks who will be sitting on the jury.

Telling them that Libby was distracted by the "very important"(tm) configuration of the CPA or the crisis of an international insult or the arrival of another bin Ladin tape isn't going to sway them. Dealing with such "very important"(tm) stuff was his job. He also had a staff trained to deal with preparing papers and screening phone calls and whatever else assistants to assistants do.

If he argues that he was facing an appointment with the proctologist the day after testifying "and my mind went blank with fear", somebody on the jury might mutter that he was still full of shit, but anybody could be forgetful while worrying, even somebody "very important"(tm).

By pegging a defense to the distant dramas of international incidents and double-super-secret classified documents, those human beings aren't going to care why he lied.

[freepatriot]

I agree with hauksdottir

what scooter libby's defense boils down to is that he was too busy to do his job

under the terms of SF-312, there is NOTHING that scooter libby could be doing that is more important than protecting top secret information

saying "I was too busy to remember when I outed a spy" ain't gonna play in Peoria, or before a DC Jury

there's one thing I'm not clear about;

how does scooter present this information to a jury ???

does he have to take the stand to introduce the evidence about how busy he was ???

if scooter DOES have to take the stand to introduce this stuff, I can't wait for that to happen

testifying before a Grand Jury was how scooter got his ass in a crack in the first place, and I don't think scooter is gonna make a very sympathetic witness in his own defense

and after scooter is done presenting his sob story, Patrick Fitzgerald gets to cross examine the witness

can't wait for that one

[smiley]

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?

Heh. That would be funny except that it's true. Judy.... JUUUUUUUU-DEEEEEEEEEE, do you hear the federal prison calling? Everyone say it with me: "Conspiracty to obstruct justice..."

[emptywheel]

freepatriot

Yes, absolutely. Libby had to say, definitively, that he would take the stand. Several of Walton's decisions assume that. So Fitz will have him--and almost certainly Dick--on the stand.

I think these people believe they are Ollie North. They don't realize that, as for Scooter, he made a lot of mistakes in his GJ testimony. And as for Cheney--NO ONE believes him when he goes on Russert and lies his ass off anymore.

[John Casper]

"I was too busy to remember when I outed a spy" at the SAME time I WASN'T TOO BUSY to GOSSIP with journalists and have BREAKFAST with Judy Miller at the St. Regis HOTEL!

[emptywheel]

"I was too busy to remember when I outed a spy" at the SAME time I WASN'T TOO BUSY to GOSSIP with journalists and have BREAKFAST with Judy Miller at the St. Regis HOTEL! for two hours.

[Swopa]

"... and have BREAKFAST with Judy Miller at the St. Regis HOTEL! for two hours."

And a long phone conversation with her at the end of the same week.

This is the part of things that makes me think Libby is angling for a pardon. Every part of your analysis of why one won't happen makes sense, EW, but is he really going to set himself up to be asked questions about this on the stand?

Even more delicious is the prospect of Big Dick being asked what he knew about Scooter's chats with Judy.

[Jeff]

To be fair to Libby, though, there is also a quality component as well as a quantity component to his memory defense, as Walton emphasized in his ruling. It was the weighty nature of what Libby was busy with that led him to misremember his conversations where he did, and, presumably, mis-make up others where he did that.

The two hour meeting with Miller will also shade into the other major compenent of Libby's defense, apparently: he will explain all the time and attention he spent on Wilson as entirely a matter of responding to him and the controversy on the merits, which obviated the need to respond by outing his wife.

Fitzgerald will obviously argue that Libby would remember Plame because he was in fact interested in that detail of the overall response to Wilson, which took up a lot of his time and attention that week, especially since his boss was so interested. What's more, the extraordinary nature of what Libby was being told to do by his boss - disclose the NIE at the direction of the VP and the President himself and so on - made the events memorable enough that it is implausible that Libby would have forgotten what transpired, including his dislosures of Plame.

[emptywheel]

There's one other curious thing about the Walton ruling, which might just be misstating Libby's case. He says,

the defendant anticipates introducing classified information ... to demonstrate that to the extent that he was involved in an attempt to respond to Ambassador Joseph Wilson's findings regarding Iraq's relationship with Niger, such efforts were for the legitimate purpose of addrssing the merits of those findings, and had nothing to do with disclosing Ambassador Wilson's wife's--Valerie Plame Wilson's--affiliation with the [CIA].

Two things about this. Walton, at least, comes close to saying "addressing the merits of those findings," does not include mention of Plame's CIA affiliation. Don't know whether Libby would totally endorse this stance, but if so, it would pretty much refute the favorite wingnut talking point, that a trip to Niger really is a "boondoggle" and Joe Wilson was very lucky he had a wife who could send him to such places.

I guess Libby doesn't want to look like a stupid rabid wingnut in front of 12 intelligent residents of DC.

THe other thing I found intriguing about Walton's phrasing is the emphasis on the "findings," which suggests they're going to emphasize my favorite prop in this story, the trip report on Wilson's trip.

[freepatriot]

so scooter has to testify ???

scooter libby is DEAD MEAT

I doubt that many people here have ever testified in their own defense

I have

it's a mine field

and I was telling the truth to begin with. I didn't start of with a pack of lies and try to dig my way

in case anybody's interested, I was aquitted on all counts (my knowledge of Pro Football saved my happy ass)

[kim]

I think a "Leak" binder would be helpful, to catalogue all the illegal leaks of classified info from the WH to the media before Deadeye got his "authorization" to do this (which I understand to be vague/shaky).

[Jeff]

Don't know whether Libby would totally endorse this stance, but if so, it would pretty much refute the favorite wingnut talking point, that a trip to Niger really is a "boondoggle" and Joe Wilson was very lucky he had a wife who could send him to such places.

In all my years of close study of the right's inconsistencies in dealing with the Wilson thing, this is perhaps the most consistent inconsistency. Righties absolutely cannot decide whether the fact that Wilson's wife had something to do with his trip is damning or not, and they vacillate on the question depending on the debate.

Libby, however, fully recognized the danger in expressing the belief that the trip was a junket set up by his wife, and testified that he thought Wilson was fully qualified for the trip and didn't indicate to reporters he knew anything about her being involved. That's reported in Fitzgerald's May 12 2006 filing on the articles he wants in. (Miller's testimony backs Libby up as far as she goes - according to her, Libby never said anything about Wilson's wife being involved in his trip.)

[clbrune]

Poor Scooter. He takes better notes than I ever could, yet he forgot to write down--anywhere--that he talked to Tim Russert, who told him Wilson's wife worked at the CIA.

I understand how a guy who is managing the entire US government needs to take notes (in great detail). But dangit! what a terrible TERRIBLE time to be without a pad and pencil...right when a news reporter is revealing CLASSIFIED information to Scoots! "Hang on, Tim. You're saying she what? Really? At the CIA? Gosh, on WMD...you don't say? You don't mind if I jot this down, I'd like to check into this myself? Well, damn! My pencil just broke!"

The Baby Jesus must have been crying that day.

[mark]

Poor Scooter. I know how he feels because everytime I get busy, I start lying. Especially to FBI agents or under oath. Can't help it really, its a disease called "Nixonosis".

[Jodi]

I must state, particularly in light of very recent rulings about corporation's being required to keep their employees email, blackberry records, phone records, and even copies of backups, and memory cards, etc., for later possible Federal perusual, that many times you just don't put down some notes or work. This of course is only the most important or dangerous stuff, that you will remember anyway. Perhaps only 1 detail of a 1,000, or 10,000.

I sure don't. And then there are the "private notes." Not left at the office, on any machine, or "memory only."
[[And a word to the wise, any machine may make a copy of anything that you write or type on that machine if it has the right software.]]

Someplaces, everything has a copy made, except handwritten, and then there are policies on those.

At times a "good memory course" is an asset even if you consider you have a good memory. Or "reminders." In ancient times, they put special knots on a cord, or carved a staff, etc., to reinforce memories.

[Jeff]

I must state, particularly in light of very recent rulings about corporation's being required to keep their employees email, blackberry records, phone records, and even copies of backups, and memory cards, etc., for later possible Federal perusual, that many times you just don't put down some notes or work. This of course is only the most important or dangerous stuff, that you will remember anyway.

This is of course the response to Libby's claim about how it is telling that the Plame information was not memorialized in talking points and so on, and that it was evidently not something he talked about a lot with other people involved in the pushback against Wilson.

I have no doubt that Libby, with his elaborate sui generis shorthand, also had a beautiful memory palace or whatever.

[pow wow]

A little more perspective on the relative quantities of classified information contained in different categories of the 6(a) ruling's material is provided in Libby's CIPA Section 6(f) reply filing on Monday:

"Through the narratives in his Consolidated CIPA Section 5 Notice, Mr. Libby provided the government with the overwhelming majority of the classified information in Topics 2 and 3 (enhancing the United States defenses for homeland security and nuclear proliferation by Pakistani scientist A.Q. Khan and efforts by the United States to stop his activities) and with much of the classified information in Topic 1 (threatened attacks on America and American interests by Al Qaeda, Hezbollah, and other terrorist groups). The bulk of the classified information that the Court has found relevant and admissible on the other [six] topics appears either in the narratives or in Mr. Libby's notes, which he created and which the government could not even interpret without the defense transliterations. And the defense provided the government with the classified information in defense counsel's [6(a) hearings] [testimony] proffers, which link the classified information in Mr. Libby's CIPA Section 5 narratives and documents to his theory of defense."

[Emphasis added]

Seems as though this creature called a "narrative" is some new CIPA-specific hybrid cooked up by Libby and his graymail attorney Cline to confound the CIPA process and the Judge, and to make Libby's "memory defense" seem like more of an integral defense against the charges Libby faces than would otherwise be the case. It also seems to be doing the trick, with regard to the graymail dismissal threat, as the government has been objecting strenuously to the amount of classified detail included in these Libby-manufactured narratives, so far without much effect on Judge Walton. And judging by the filing, also on Monday, of the government's second Section 6(c)(2) affidavit, the Judge is going to end up having to make a decision and choose between the IC's national security concerns about disclosure of at least some of the 6(a)-ruled-relevant evidence, and another "slanted" ruling for Libby which would presumably lead straight to a second [6(c)] appeal by the government.

[To John L. above: note that the 'disappeared' Opinion from 11/13 was connected to the Judge's first denial of a 6(c) substitution motion from the government - an Opinion which Walton later vacated (thus the disappearance). We're presumably now awaiting the Judge's revised, final Opinion and ruling on the government's revised 6(c) motion, to which Monday's new affidavit is addressed.]

[Jeff]

pow wow

Are you quite sure that the CIPA 6(c)(2) affidavit from the Attorney General is the second one that's been filed, and is just basically the routine accompaniment to a new round of 6(c) substitutions from Fitzgerald?

[Jodi]

I don't know Jeff.

There are many counter arguments that can be made about why something is not there, that some might consider to be obviously missing by evil design.

For example, I am sure there is a lot of stuff in Libby's notes about 9/11 but an absense of anything linking him to a plot with the Saudis to do the dastardly deed doesn't mean he was involved in the plot.

It is hard to prove by "weight of absense" anything! The argument can be turned on its head too easily. Not to say that if the argument is impressive, that a jury won't be swayed.

But Fitz is not very impressive to me. He seems a bulldog.
Not a Clarence Darrow, or William Jennings Bryan and certainly not the real but legendary Daniel Webster.

"even the damned may salute the eloquence of Mr. Webster"

Not Fitz.

[Jeff]

There are many counter arguments that can be made about why something is not there, that some might consider to be obviously missing by evil design.

Of course that's the case. The point is that there is a fully coherent explanation for Libby's actions and omissions based on the hypothesis that he knew the Plame information was sensitive and that, while he wanted to get it out, it would be unwise to do so in concert with too many others and that he would be deeply unwise to put the information in the standard talking points, and so on. But that's just a coherent explanation, it's not itself evidence of that explanation, much less the only possible explanation. But I don't know what else you'd expect.

It is a much more plausible explanation for Libby's conduct, however, than your counterfactual about Libby's possible participation in a plot with the Saudis for 9-11.

That's great that Fitzgerald is not very impressive to you. Congratulations.

I also wager that no one actually damned by Mr. Webster saluted his eloquence. The very idea strikes me as ridiculous. I have no doubt it was not one of those actually damned by Mr. Webster who offered that line.

[Jeff]

pow wow

I see you're right, Fitzgerald submitted an identical notice regarding CIPA 6(c)(2) in November. So it does look like this is just part of the next round of proposed substitutions.