This just in from the AP via Houston Chronicle:
Judge Says Libby Can See Bush Briefings
By TONI LOCY
Associated Press Writer
© 2006 The Associated Press
WASHINGTON — A federal judge ordered the CIA on Friday to turn over
highly classified intelligence briefings to Vice President Dick
Cheney's former top aide to use in preparing the aide's defense against
perjury charges.
U.S.
District Judge Reggie B. Walton rejected CIA warnings that the nation's
security would be imperiled if the presidential-level documents were
disclosed to lawyers for I. Lewis "Scooter" Libby, Cheney's former
chief of staff.
The judge said the CIA can either delete
highly classified portions from the briefing material and provide what
amounts to a "table of contents" of what Libby and Cheney received six
days a week. Or, Walton said, the CIA can produce "topic overviews" of
the matters covered in the briefings.
The judge also
ordered the CIA to give Libby an index of the topics covered in
follow-up questions that the former White House aide asked intelligence
officers who conducted the briefings.
...
The lawyers want to use the briefings as the cornerstone of Libby's
defense: to show that the former top White House aide had more
important matters on his mind and could have easily forgotten or
remembered incorrectly "snippets" of conversations he had about CIA
operative Valerie Plame.
Special Counsel Patrick Fitzgerald
opposed giving Libby any of the briefings and accused the defense of
trying to derail the case by "greymail," a process where former
government officials have forced dismissals of their cases because they
threatened to reveal the nation's secrets at their trials.
"Neither party has it exactly right," Walton wrote.
Libby
needs to know the gist of the intelligence briefings to put on a
"preoccupation defense," the judge said. But, he said, the former White
House aide should be able to refresh his memory by reviewing
generalized versions of the intelligence briefings.
"It is inconceivable that the defendant's memory of matters of significance to him have totally vanished," Walton wrote.
The Bush Administration may resist releasing summaries of the PDB. However:
The judge's order indicates he is ready for such a fight. He set a
schedule for the Bush administration to file any objections by March 24.
This story does not say whether Libby is getting a full year's worth of summaries, or only summaries around the time periods gauged by the judge as relevant. However, I am looking at the order (link to follow), and it is for restricted dates of about 58 days - June 7 to July 14 covers the in-house and leak period, and then other five day spans cover what we presume are the dates of Libby's FBI and grand jury testimony. [But which of those days are Sundays? I count eight Sundays plus Thanksgiving, Columbus Day, and Independence Day; 58 minus 11 is 47.]
The dates: June 7 to July 14, 2003; Oct 12-16, 2003; Nov 24-28, 2003; Mar 3-7 2004; and Mar 22-26, 2004. I see from the opinion that Libby testified twice to the grand jury in March 2004.
And why June 7, and not May 6 as Libby had requested? The judge explains that, per para. 4 and 5 of the indictment, Libby only learned that Valerie Wilson was Ambassador Wilson's wife on or about June 9. OK - the indictment leans towards June 11, but the defense presumably wanted the extra couple of days.
Here is the Opinion (25 page .pdf), the Order (2 page .pdf), and a bonus - Fitzgerald's filing on ExParte Submissions (13 page .pdf).
A ruling on two remaining outstanding issues - any CIA damage assessment of the leak, and Ms. Plame's employment status - will be deferred pending further consideration.
MORE: From the ex Parte submission, we love this explanation for why Fitzgerald can't share classified info with Libby's defense team:
Underlying the crimes charged in Poindexter and George was the Iran Contra affair. Underlying the crimes charged in this case is the failure by a senior national security official to adequately safeguard sensitive classified information. This failure goes to the very heart of the government’s concerns about sharing non-discoverable classified information with Mr. Libby and his defense team.
Oh, stop - this gives the defense a chance to argue, yet again, that Fitzgerald might need to show some evidence that Libby was actually aware of her status. It is clear from the indictment that the report on Wilson's trip was classified, but it does not follow that the supplementary oral tidbits about the spousal connection were also classified.
That said, unless I am brain-locking the judge has already ruled in favor of Fitzgerald on this.
UPDATE: Here is the Times coverage, which includes a dubious description of the Wilson op-ed:
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.
"Twisted the intelligence" is the preferred phrase, and Wilson focused in his op-ed
on the fact that no sale of uranium took place, rather than on whether Saddam had made the attempt. And a good thing, too, since his oral report to the CIA did mention apparent Iraqi overtures on that subject in 1999.
And either my arithmetic and calendar skills have deserted me, or this is wrong:
Moreover, Judge Walton said the government should turn over only 46 days of those topic summaries.
I got 47 days - big deal.
MORE: Here is the WaPo, with an odd conclusion:
The fight over the classified material has delayed the Libby
proceedings and prompted prosecutor Fitzgerald to charge that Libby's
defense team is requesting unobtainable documents in an effort to
derail the trial.
Huh? A lot of issues have delayed this trial; we expect more delays when various WaPo reporters contest their subpoenas, and when the ruling on whether Fitzgerald's appointment was Constitutional is appealed.
And Fitzgerald's "graymail" charge notwithstanding, the judge has agreed that summaries of some of these documents are relevant to the defense.
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