Saturday, November 5, 2005

Libby Prosecution Will Enter CIPA Hell

The indictment of I. Lewis Libby implicates classified information, and the indictment refers to the disclosure of information to Libby in the context of security briefings, which means the government will have to invoke the Classified Information Procedures Act, 18 U.S.C.A. App. 3.  The first step will be that all of Libby's defense lawyers (he has representation from three firms) will have to undergo a background investigation to obtain a security clearance.  After that, strict secrecy procedures will be in place regarding the review of documents and any witness interviews by the defense that involve classified information.  Under Section 6(a) of CIPA, the government can request a hearing to determine the "use, relevance, or admissibility" of classified information.  The Act provides:

Within the time specified by the court for the filing of a motion under this section, the United States may request the court to conduct a hearing to make all determinations concerning the use, relevance, or admissibility of classified information that would otherwise be made during the trial or pretrial proceeding. Upon such a request, the court shall conduct such a hearing. Any hearing held pursuant to this subsection (or any portion of such hearing specified in the request of the Attorney General) shall be held in camera if the Attorney General certifies to the court in such petition that a public proceeding may result in the disclosure of classified information. As to each item of classified information, the court shall set forth in writing the basis for its determination. Where the United States' motion under this subsection is filed prior to the trial or pretrial proceeding, the court shall rule prior to the commencement of the relevant proceeding.

Needless to say, the presence of classified information makes the case that much more complex, and will slow the process down considerably.  Don't hold your breath waiting for a trial date to be set in the case because the discovery phase may be prolonged by any wrangling over classified information, or even delays in clearing the legion of defense lawyers who will have to have access to the information.  Moreover, the hearings involving such information will be closed to the public, so the cause of any delay due to classified information issues will not necessarily be disclosed. (ph)

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