Friday, February 17, 2006

The CIPA Battle Heats Up

I. Lewis Libby's demand for a large number of classified documents, including almost nine months of Presidential daily intelligence briefings, is being resisted by Special Counsel Patrick Fitzgerald as an attempt at "greymail" to trigger a dismissal of the charges.  Under the Classified Information Procedure Act (CIPA), if the government decides that it will not permit the disclosure of  national security information that it is directed to provide to the defendant, then one remedy is the court can dismiss the indictment.  Section 6(e)(2) of CIPA (here) provides:

(2) Whenever a defendant is prevented by an order under paragraph (1) from disclosing or causing the disclosure of classified information, the court shall dismiss the indictment or information; except that, when the court determines that the interests of  justice would not be served by dismissal of the indictment or information, the court shall order such other action, in lieu of dismissing the indictment or information, as the court determines is appropriate.  Such action may include, but need not be limited to -

       (A) dismissing specified counts of the indictment or information;

       (B) finding against the United States on any issue as to which the excluded classified information relates; or

       (C) striking or precluding all or part of the testimony of a witness.

An order under this paragraph shall not take effect until the court has afforded the United States an opportunity to appeal such order under section 7, and thereafter to withdraw its objection to the disclosure of the classified information at issue.

According to defense counsel, the classified information is necessary to show that Libby was involved in more important matters than the status of Valerie Plame as a CIA agent -- the "honest-but-overworked-public-servant" defense.  Fitzgerald argues that revealing the contents of those briefings would open up the deepest secrets held by the government, and is an effort to force the dismissal of the indictment because prosecutors could never agree to such wide-ranging disclosure of national security secrets.  Unlike the "honest-but-ignorant-CEO" defense, which emphasizes the defendant's lack of knowledge of details, Libby's defense is that he knew too much to have dallied over such trifling issues as Plame and her husband, Joseph Wilson, and will try to prove how much he knew (or at least had on his mind).  An AP story (here) discusses Fitzgerald's response to Libby's request for classified information. 

For those holding their breath until the scheduled January 2007 start of the Libby trial -- not that I recommend such a thing -- check the last paragraph of Section 6(e)(2) above.  If Libby were to be successful in obtaining the dismissal of any charges or a judicial factual finding against the government, that decision can be appealed to the DC Circuit and even the Supreme Court.  Could we have a new President before Libby goes to trial?  If the CIPA issues get too hot to handle, might there be a pardon in the wings to avoid a fight over the issue, particularly if it were headed to the Supreme Court?  Just speculating, mind you. (ph)

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