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December 02, 2006

Comments

clarice

I seriously doubt he'd do that. Don't you? In fact, I'd regard that as an unauthorized disclsoure of classsified material for which he would be subject to criminal investigation himself.

topsecretk9
Why isn't this immediate grounds for an appeal of the Appointments Clause ruling? Doesn't this mean that Fitzgerald is exercising specific authority that the Attorney General has no authority to delegate?

Isn't Gonzo just supposed to be happy to sometime read all about it in the papers?

cboldt

On the point of reciprocal disclosure, I think Memorandum Concerning Admissibility of Documents on Consolidated CIPA Sec. 5 Notice [Doc 146], discussed at Libby To Testify At Trial - September 22, 2006, has a few transparent clues regarding the defense rebuttal information that Fitz is unconstitutionally withholding from Libby.


What is a "TTM entry" in "PDB topic overviews and TTM entries?"

Cecil Turner

What is a "TTM entry" in "PDB topic overviews and TTM entries?"

"TTM" refers to "Terrorist Threat Matrix" (top of page 4). That's apparently the daily briefing on terror events produced by a joint venture between FBI and CIA (et al):

At the Terrorist Threat Integration Center (TTIC), analysts from the CIA, FBI, Homeland Security, Defense, and other agencies work side-by-side in one location to collect and analyze the universe of threats. This fusion enables TTIC to produce the daily terrorist threat matrix used by the heads of the CIA and FBI to brief the President, and to produce a host of other finished analytic reports besides, literally putting everyone on the same page.
The TTIC stood up in May '03, and was apparently taken over by the National Counterterrorism Center (NCTC) in December '04:
The NCTC, for example, now prepares the daily terrorist threat matrix, previously done by TTIC, which has been a major part of the terrorism section of the daily morning intelligence briefing given President Bush. Analysts from the CIA, FBI, Homeland Security, Defense and other agencies work together as part of the NCTC in a building in Tysons Corner, putting together the matrix from the domestic and foreign threat information that pours into the center.

cboldt

Filling in gaps in my copy of the record, Fitz's 211 NOTICE of Filing [affidavit under CIPA Sec. 6(c)(2)], filed yesterday, is the second notice of filing a CIPA 6(c)(2) affidavit. The first NOTICE was Doc 173, filed on November 7. I believe that Fitz's motion in Doc 172 on November 7, to Seal the affidavit of Special Counsel Pursuant to Classified Information Procedures Act Section 6(c)(2), relates to the affidavit NOTICED as being filed in Doc 173.

I think these tracks in the docket reflect multiple trips through the 6(c) mill at the trial court level, where Walton first denied Fitz's 6(c) substitutions (Docs 177 and 178 of 11/13, instructions to Fitz), Fitz making another go, Walton vacating the rationale expressed in his November 13 opinion (but as far as I can see, not vacating the accompanying order that denied the substitutions), Fitz making another go. Libby has prepared and filed two responses under seal ...

  • 11/07/2006 174 RESPONSE by I. LEWIS LIBBY to Government's first set of proposed substitutions.
  • 11/16/2006 194 RESPONSE by I. LEWIS LIBBY to government's proposed substitution as revised.

Fitz appears to have a second round of 6(c) substitutions underway, judging from the 12/4 filing of a second 6(c)(2) affidavit.

Walter

Thanks, CBoldt.

Do you suppose that, if Fitzgerald's current round of substitutions are accepted, he will drop his 6(a) appeal as moot?

Or would he prefer to continue in order to (a) attempt to remove an adverse decision from the books and (b) gain some (however slight) tactical advantage?

Again, from the appellate court's point of view, the appeal doesn't seem ripe for adjudication without some sense of what is at stake.

The appeal should be moot if the Government finds a workable substitution that does not harm national security.

Even though the appeal is authorized by statute, the doctrine of "no advisory opinions" is constitutional in nature.

cathyf
The ultimate question (authority, if you will) is the AG's and Comey was without power to peddle that away.
Interestingly, according to the statute, it appears that it was lawful to delegate the authority to Comey, but not lawful for Comey to delegate it further.
Cecil Turner

Interestingly, according to the statute, it appears that it was lawful to delegate the authority to Comey, but not lawful for Comey to delegate it further.

It seems to me to be a separate issue of the AG acting in his role as advocate for the government in protecting classified information from being divulged when the national interest outweighs the benefits of prosecuting the particular case. If so, there'd seem to be a conflict of interest with a special prosecutor acting in the role. Also, a plain reading of 6(c)(2) seems to indicate it's the prerogative of the AG alone. (But I admit not understanding most of this part . . . and it makes my head hurt.)

cboldt

Another filing by that partisan hack, Fitzgerald. This one, Doc 212, is a supplemental motion relating to substitutions under CIPA 6(c). The filing is classified, nothing to read but the docket entry.

12/05/2006 - Doc 212 - SUPPLEMENTAL MOTION pursuant to CIPA Section 6(c) for substitutions in lieu of disclosure of classified information by USA as to I. LEWIS LIBBY. (CLASSIFIED INFORMATION) (mlp) (Entered: 12/05/2006)
clarice

Cecil, in my view there are two different roles:(a) special prosecutor to conduct the investigation and prosecution;(b) the role of the AG in determining which classified documents can be made public (i.e. declassified).

(a) can only relate to a specific matter.(b) is of far reaching import and cannot be delegated even if, unlike here, the delegation had been made pursuant to the statute.

The closest this case has come to this line to date IMO was when the AG did not enter an appearance on the original dismissal motion--i.e. on the legality of the Comey delegation which it seems to me transcends this individual case and goes into broader policy and law questions.

Cecil Turner

. . . the Comey delegation which it seems to me transcends this individual case and goes into broader policy and law questions.

Concur, and if I were a legal beagle (no offense), I'd probably think that was the most important part of the whole affair. As a defense wonk, I'm more concerned with disaffected intelligence personnel using classified disinformation for political purposes (especially as it contravenes national policy by spreading seditious material in wartime). This affair was quite slick, relying on the sensitive nature of the information as a shield against effective rebuttal. And though I can't prove collusion between the Wilsons, VIPS, NSWBC, and various leakfests through the NY Times, I'm comfortably persuaded it's a group effort at Pentagon Papers redux . . . exactly as advertised:

Veteran Intelligence Professionals for Sanity, composed mostly of former CIA analysts along with a few operational agents, is urging employees inside the intelligence agency to break the law and leak any information they have that could show the Bush administration is engineering the release of evidence to match its penchant for war.
Hence my major policy concerns are that such efforts don't prosper, and that there's an effective corrective mechanism. I recognize it's a minority position (which is perhaps good, because my side is losing . . . badly).

clarice

Cecil, yesterday the NY Sun won a FOIA case requiring DoJ to detail what action it has (is) taking on the classified leaks matters.
I have no idea why the prosecution of these matters is taking so long. Perhaps when the Sun gets the papers, they'll share that info with us.

It is appalling. As appalling as Fitz' failure to question what he called the "good leaks". The ploy of shielding oneself from criticism by leaking classified material and then targeting those who responded by claiming they "outed" Plame is one of the most outrageous examples of Chutzpah I've ever seen.

topsecretk9

--The ploy of shielding oneself from criticism by leaking classified material and then targeting those who responded by claiming they "outed" Plame is one of the most outrageous examples of Chutzpah I've ever seen--

Especially when it appears that the classified they leaked was engineered! -

Either to purposely embarrass the Admin.(and ultimately unseat Bush) or they craftily manipulated "information" of their own nefarious criminal conduct -- which seems more likely to me.

maryrose

Corrective mechanism here would be Gonzales reining in Fitz. To me it is now a conflict of interest for Fitz in the prosecutorial role. He doesn't know enough about what needs to be classified because he isn't privy to that information. Presisent Bush and the OFFICIAL Attorney General need to make those distinctions for Walton and pull the plug accordingly.

lurker

Mac Ranger has a post up indicating that Joe Wilson is actively participating at the firedoglake site.

cboldt

-- "yesterday the NY Sun won a FOIA case requiring DoJ to detail what action it has (is) taking on the classified leaks matters" --

Links to court opinions at FAS Court Orders Expedited Handling of FOIA Request on Leaks

As an example, Gerstein's request to the CIA seeks the following records:

  1. All so-called criminal referrals submitted by CIA to the Department of Justice ("DOJ") since January 1, 2001 regarding unauthorized disclosure of classified information to the press or public.
  2. All responses from DOJ to CIA indicating the outcome of the investigations, inquiries, or legal analyses related to the incidents referenced in No. 1 above.
  3. All records reflecting the outcome of disciplinary proceedings instituted in connection with the incidents referenced in No. 1 above.
  4. All records reflecting the outcome of damage assessments conducted in connection with the incidents referenced in No. 1 above.
  5. All logs, lists, tallies, tabulations, summary reports, compilations, and the like pertaining to the referrals described in No. 1 above, whether or not composed solely of those referrals.
  6. All records pertaining to published reports in or about August 1998 that the United States was aware of or tracking a satellite telephone used by Osama Bin Laden, the source or sources of that alleged leak, all referrals by DOJ in connection with that alleged leak, all replies from DOJ thereto, and any damage assessment conducted in connection with that alleged leak.
SunnyDay

Wow! So, reckon we'll find out what's in the Libby referral letter?

clarice

Probably not--"Neither order precludes agencies from invoking lawful exemptions to the Freedom of Information Act and withholding documents accordingly."

cathyf

I've argued here that Plame's CIA employment fails the tests in Executive Order 13292 Sect 1.7 (a) (1), (2) and (4). The order also contains penalties for those who violate it:

Sec. 5.5. Sanctions. (b) Officers and employees of the United States Government, and its contractors, licensees, certificate holders, and grantees shall be subject to appropriate sanctions if they knowingly, willfully, or negligently:

(2) classify or continue the classification of information in violation of this order or any implementing directive;

(c) Sanctions may include reprimand, suspension without pay, removal, termination of classification authority, loss or denial of access to classified information, or other sanctions in accordance with applicable law and agency regulation.

So, do you think that the CIA flunkies will be willing to lose their jobs in order to pull Fitzgerald's bacon out of the fire?

clarice

I'm not sure I understand the question. My guess is she was in the wrong status just out of neglect or deliberately to allow her higher renumeration after the CIA erroneously blew her cover to Cuba.

I do have questions about those who initiated the referral however, because I think it was fraudulent..or carelessly done (that is, without adequate study of her status and if the agency had done everything it could to keep his employment secret).

topsecretk9

-- Sanctions may include reprimand, suspension without pay--

Didn't she receive this?

clarice

Not to my knowledge.

topsecretk9

Wasn't she put on leave without pay for a year ? BEFORE she retired?

I thought this was the case, no?

clarice

I thought she took that leave on her own--post partum depression ..

Now here's a tidbit:

: figure
"Very odd," says our source. "They sat at a table in the back."
Referring to the intriguing trio of Pennsylvania Republican Sen. Arlen Specter, former ambassador Joseph C. Wilson IV, and his wife, Valerie Plame, of CIA-leak fame, sharing a luncheon table yesterday at Charlie Palmer Steak restaurant"

http://www.washingtontimes.com/national/20061129-121556-4599r.htm

topsecretk9

VERY interesting....Clarice.

Actually, extraordinarily interesting...,to me at least.

There have been more than a few comments - cryptic as they are - that draw some connection to Specter and the Wilson's dating back to 04. Interesting the cryptic comments from way back entail the NSA wireless business.

topsecretk9

BOY...Clarice...someone should prod Byron York to follow up with Specter's office with that...I am sure Katryn Lopez would light a fire under his - you know what - too.

MJW

According to an article last year in the British paper The Daily Telegraph, Plame was on an "enforced leave of absence." The circumstances surrounding the leave of absence have yet to be revealed.

kate

My take on Fitzgerald. Tonight on the O'Reilly program they had an expert on body language and they reviewed several of the more current episodes. The one that intrigued me was Jimmy Carter on C-Span. The caller let Jimmmy have it and the body language expert thought Jimmy looked sad. I thought he looked shocked. He clearly was not use to the sort of criticism the caller leveled at him.

I think Fitz is the same. Remember back in October 2005, he was the most brilliant, had the most integrity according to the media.

In the last several months, he has been subject to some criticism and he is shocked. He will fight like a tiger for this case, his ego demands it.

maryrose

kate:
Unfortunately I believe you are correct in your opinion on Fitz. He wants to be vindicated more than he wants fairness and justice in this case. He will not admit he was wrong and went barking up the wrong tree. the person who should be on the hot seat right now is Armitage. When President Bush asked who the leaker was , Armitage should have come forward. instead he remains free and has suffered no consequences for his big mouth leaking. Meanwhile Libby got caught in the crosshairs of Fitz and his bumbling team as well as a slap fight between the State department and the Administration. Now Fitz is too proud to admit he blew it;just like Carter continues to marginalize himself with his whacky statements. Clinton and Carter should follow Ford's and Bush Sr.'s example and just be quiet.

clarice

A quick Google shows that Specter suggested early on that Ashcroft should recuse himself and that Specter also said there should be a full inquiry into the declassification of info to rebut Wilson.

So, with Schumer pressing Comey to go after Wilson's critics hammer and tong and Specter seemingly on that side, no wonder COmey preceded and appointed mad dog Fitz even after he knew that it was Armitage who was the leaker.

Now, what I wish I knew is when Schumer and Specter knew of Armitage--was it an early whisper to them from DoJ ?

cathyf
My guess is she was in the wrong status just out of neglect or deliberately to allow her higher renumeration after the CIA erroneously blew her cover to Cuba.
But that is specifically covered in Sec 1.7 of the executive order:
Sec. 1.7. Classification Prohibitions and Limitations. (a) In no case shall information be classified in order to:
  1. conceal violations of law, inefficiency, or administrative error;
  2. prevent embarrassment to a person, organization, or agency;
  3. restrain competition; or
  4. prevent or delay the release of information that does not require protection in the interest of the national security.
If Plame's status was thought to be "classified" in order to hide simple bureaucratic inertia, or to prevent embarrassment to the CIA, or was thought to be "classified" but was simply an error, then her status was not classified, according to the executive order. If the criminal referral was over something not criminal because she wasn't classified, then the criminal referral itself fails the tests of 1, 2, and/or 4. And anyone who responds to an FOIA request for the criminal referral by claiming that the criminal referral is classified is violating the terms of the Executive Order and the FOIA. And government employees/contractors "shall be subject to appropriate sanctions if they knowingly, willfully, or negligently ... classify or continue the classification of information in violation of this order [EO 13292] or any implementing directive..."

It seems to me by a plain reading of the EO that anybody who willfully claims that the Plame referral is classified is in pretty deep doodoo if it's not. Especially if the false classified claim is in the course of frustrating an FOIA request. I just don't see people at CIA who have the motivation to fall on their swords to save Fitzgerald's butt. Especially if the CIA sent the referral because they wanted DoJ to track down and punish the State Dept blabbermouths. In which case the CIA would be pretty pissed that the FBI and Fitzgerald decided to let State (Armitage, Grossman, Powell) off scot free while going off half-cocked and indicting Libby before conducting an investigation of the complete time period at issue.

clarice

I think Fitz would argue that is all irrelevant to this case--that whther or not the investigation was ultimately based on a false pretense, Libby had an obligation to tell the truth. But I do think you've raised a very compelling argument about the referral.

maryrose

A very compelling argument indeed about the referral. I think that is why no one is willing to release the referral because its purpose is laughably flimsy and will not hold up to intense scrutiny.

hit and run

clarice:
A quick Google shows that Specter suggested early on that Ashcroft should recuse himself and that Specter also said there should be a full inquiry into the declassification of info to rebut Wilson.

My first thought was, she's talking about our Specter?

But then I came to my senses.

cboldt

A filing yesterday by Team Libby [Doc 213], but under seal because it contains classified information. This one is a response to (rebuttal against) Fitz's Supplemental CIPA 6(c) substitutions, also filed yesterday.



12/05/2006 - Doc 213 - RESPONSE by I. LEWIS LIBBY re 212 U.S.A.'s December 4 Revised Substitutions. (CLASSIFIED INFORMATION) (mlp) (Entered: 12/06/2006)

cathyf

I agree, clarice, that Fitzgerald will argue that it's irrelevant. But that cuts both ways -- if the referral is irrelevant to the Libby case, and not properly classified, then there is no legitimate reason to deny the New York Sun's FOIA. At least as concerns the Plame referral -- there are supposedly hundreds of referrals over the time period in question and sure I bet quite a few of them are legitimately classified and won't be turned over.

But even if the FOIA process takes most of the referrals and redacts them so heavily that they contain no information, a response to the request will give us interesting information. It will tell us how many referrals there were over the period. It will tell us how many other referrals were substantially frivolous (since those will be pretty minimally redacted.) We should see some completely legit referrals which will be pretty much unredacted because circumstances have rendered them no longer security hazards, so we should know what a legit referral looks like. Victoria Toensing has described a fairly reasonable back-and-forth process where the CIA and DoJ together figure out which things are real security leaks and which are false alarms, and even a look at the false alarms and a count of the real things should give us a picture of whether that process really works.

clarice

Maybe we'll even get the correspondence which reportedly shows DoJ twice refusing to operate on the referral because it was insufficient as a matter of law and DoJ practice.

MJW

Libby has filed his reply on the his motion for reciprocal discovery.

topsecretk9

Thanks MJW!

topsecretk9

MJW

Interesting you found this filing on Libby's site...the site in the past has been lagging on posting filings (like days after they are posted and dissected via court's site)

MJW

TSK9, I was surprised to find it there. Libby's website also has a link to Walton's CIPA decision. I hope this is the beginning of a trend.

Walter

Thanks for the link, MJW.

I had leaned towards Fitzgerald's interpretation on CIPA-required reciprocity, but Libby raised two points I had failed to consider.

Crim Pro isn't my speciality, so I'll leave the 5th Ammendment implications to those who spend the time on those cases.

But more interesting is the argument that the classified information at issue isn't just government documents. It isn't just historical conversations. It isn't even limited to Libby's written recollections and contemporaneous notes.

Libby's very thoughts then and now are classified.

He argues that CIPA (as interpreted by the Court) required him to disclose to Fitzgerald what he thought then and what he thinks now about what he thought then in order to describe his current recollections about his past state of mind.

Ordinarily a defendant need not take the stand. Even if he does so, the government has no right to question him about what he plans to say or would like to communicate.* Even if he does take the stand, he may only be questioned about matters he covered in his testimony.**

But here, Libby has had to describe not only what his testimony is, but also what he would like to testify to if allowed to by the Court.

And, because under CIPA Fitzgerald is allowed to propose substitutions for classified information, Libby is concerned that he will only be allowed to describe his thoughts (as they are themselved classified insofar as they relate to classified material) in terms permitted by Fitzgerald.

Wow!

Libby may not even describe what he was thinking about Wilson, Plame, or even Monrovia in terms other than those allowed by the Court with Fitzgerald's approval.

Given that, it certainly seems reasonable to request equal opportunity to evaluate Fitzgerald's response to Libby's proposed defense prior to trial.

*Exception: Insanity defense in most states, probably other narrow exceptions covered in the cases discussed in the briefs. Note that reciprocal discovery is mandatory in these cases.
**Exceptions: Issues relating to credibility, etc.

cboldt

Another filing by Fitz - this is his third CIPA 6(c)(2) affidavit.



Case 1:05-cr-00394-RBW Document 214 Filed 12/07/2006 Page 1 of 2


The United States of America, by and through its attorney, Special Counsel Patrick Fitzgerald, hereby provides notice that the government has filed an ex parte and in camera affidavit with the Court pursuant to Section 6(c)(2) of the Classified Information Procedures Act.

clarice

Suggests to me he's noting three docs he cannot get clearance to release.

cboldt

-- "Suggests to me he's noting three docs he cannot get clearance to release." --


Okay.

clarice

Per Fox:Bill Richardson is running for President. Wilson and Plame are moving to N Mexico to work for his election.

Rocco

Remember The Indian Ocean Newsletter? From SBD at Winds Of Change

The Indian Ocean Newsletter October 23, 1999 SECTION: ECONOMICS & PROJECTS; ETHIOPIA / UNITED STATES; N. 876 LENGTH: 363 words HEADLINE: Well--connected businessmen

The delegation of American businessmen which is to go to Addis Ababa from November 6 to 14 at the instigation of Ethio--American Trade and Investment Council (an organism managed by Gezahegn Kebede. which is close to the Ethiopian government) has some solid connections with the US Administration. The visit will be sponsored by Osyka Corporation, a Texas oil company whose chairman Michael F. Harness is a member of both EATIC and of National Petroleum Council, an organism charged with advising US secretary for energy Bill Richardson. Another sponsor is F. C. Schaffer & Associates, a sugar company whose chairman Mina Nedelcovych is boss of Corporate Council on Africa which groups American enterprises active in Africa.

Several companies controlled by Saudi--Ethiopian magnate Mohamed Hussein Al Amoudi have helped to organize the trip: Westar Group, which administers Al Amoudi's interests in Washington and is chaired by Derige Mekonen after having been long managed by banker Jeff Wilson, and the Addis Ababa Sheraton whose board includes ex--US ambassador to Ethiopia Irvin Hicks and Al Amoudi's Midroc Ethiopia group. There is also Rock Creek Corporation, an investment company controlled by Al Amoudi and chaired since 1997 by Elias Aburdene, a Lebanese businessman very well introduced in Washington power circles. A former adviser to the Franklin National Bank in Washington DC, Aburdene right from his accession to the top of Rock Creek engaged US president Bill Clinton's former adviser for African affairs, Joseph Wilson IV as adviser. The latter had already met Al Amoudi in 1997 during a meeting organized at the World Bank by the Westar Group (ION 794). Apart from his responsibilities with Rock Creek, Aburdene is executive chairman of the very influential National Association of Arab Americans. A former lecturer at the University of Georgetown's School of Foreign Service, he is also very active with former students of the university where ex--assistant secretary of state for African affairs Chester A. Crocker and US mediator in the Eritrea--Ethiopia border dispute (and former national security adviser to Clinton) Anthony Lake are professors.

SBD

La">http://www.africaintelligence.fr/LOI/archives/default_archives.asp%3Fnum%3D876%26year%3D&prev=/search%3Fq%3Deatic,1999%26start%3D20%26hl%3Den%26lr%3D%26sa%3DN">La Lettre De L'Ocean Indien

clarice

Thanks for the reminder, Rocco. Of course, I
d forgotten that.

Rocco

And then this from piasa at FR

MARCH 17, 1999 : (PICKERING & RICHARDSON TESTIFY THAT THE UN 'OIL FOR FOOD PROGRAM' IS AN ''ESSENTIAL" COMPONENT OF THE CLINTON ADMINISTRATION'S IRAQ STRATEGY) Undersecretary of State for Political Affairs Thomas Pickering and Energy Secretary Bill Richardson testified March 17 that the U.N.'s Oil-For-Food program for Iraq is an essential component of the U.S. Administration's Iraq strategy and is, therefore, key to our national security. RICHARDSON, PICKERING FAVOR EXPANSION OF OIL-FOR-FOOD PROGRAM By William B. Reinckens USIA 17 March 1999

He lobbies to expand Oil For Food in March then travels to Ethiopia in November with a Saudi oil tycoon to promote business? Is it me or does that seem shady?

clarice

Richardson is denying the report.

MJW

A few days ago, there was a brief discussion about the ruling in favor of NY Sun reporter Josh Gerstein in his a FOIA suit against the CIA. Items sought in the FOIA request include all CIA referrals since 2001 involving the the unauthorized release of classified information, and the damage assessments associated with the referrals. The Plame referral and damage assessment would no doubt be included. Gerstein has written a fair amount on the Plame affair, so it's likely any information he obtains will be published. Here, according to the website FOIAdvocates (which also has useful annotation), are the nine categories of information exempt from the FOIA:

1. National defense or foreign policy information properly classified pursuant an Executive Order. 5 U.S.C. § 552(b)(1).

2. Documents "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2).

3. Documents "specifically exempted from disclosure by statute" other than FOIA, but only if the other statute's disclosure prohibition is absolute. 5 U.S.C. § 552(b)(3).

4. Documents which would reveal "[t]rade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. § 552(b)(4).

5. Documents which are "inter-agency or intra-agency memorandum or letters" which would be privileged in civil litigation. 5 U.S.C. § 552(b)(5).

6. Documents which are "personnel and medical and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6).

7. Documents which are "records or information compiled for law enforcement purposes," but only if one or more of six specified types of harm would result. 5 U.S.C. § 552(b)(7).

8. Documents which are related to specified reports prepared by, on behalf of, or for the use of agencies which regulate financial institutions. 5 U.S.C. § 552(b)(8).

9. Documents which would reveal oil well data. 5 U.S.C. § 552(b)(9).

MJW

Of the nine categories, these three seem the most likely excuses for not releasing the Plame referral:

1. National defense or foreign policy information properly classified pursuant an Executive Order.

5. Documents which are "inter-agency or intra-agency memorandum or letters" which would be privileged in civil litigation.

7. Documents which are "records or information compiled for law enforcement purposes," but only if one or more of six specified types of harm would result. (7(b) allows the withholding of information that would deprive a person of a right to a fair trial or an impartial adjudication.)

This one seems quite unlikely, but possible:

6. Documents which are "personnel and medical and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." (Latching onto Plame's claim of a privacy interest in her job status.)

The extent to which these exceptions apply in denying FOIA requests is discussed at length in the website I linked to in my previous comment.

kate

I was intrigued by the story of Spector having lunch with Wilson/Plame the other day. Wonder how Rove now feels about supporting Spector's reelection so energetically to find him being so chummy with anti-Bush operatives.

lurker

Why would Specter be interested in having lunch with Joe Wilson and Valerie Plame? Do they think they are just starting to get back into the game, even for two more years?

What's the status of this Wilson / Plame lawsuit against Lewis, Rove, Cheney, and Armitage?

lurker

OT:

Anyone familiar with this new lawsuit?

Secret Law?

cboldt

-- "Anyone familiar with this new lawsuit?" --

I've read Gilmore's Reply brief in support of a grant of his petition for certiorari. See links to that filing and other papers howappealing.law.com, one of my favorite digests of timely news.

There's quite a bit of discussion at volokh, and this from January 2006.

Further off topic, fas.org also had this piece that draws a comparison between the Libby case and a FOIA request for 40 year old PDBs.

cboldt

-- "What's the status of this Wilson / Plame lawsuit against Lewis, Rove, Cheney, and Armitage?" --


Five Motions to Dismiss (all filed on November 14, 2006) are pending ...



U.S. District Court

District of Columbia (Washington, DC)

CIVIL DOCKET FOR CASE #: 1:06-cv-01258-JDB

  • Doc 21 - MOTION to Dismiss 17 Amended Complaint by RICHARD B. CHENEY. (Attachments: # 1 Text of Proposed Order VP proposed order)(Flood, Emmet) Modified on 11/15/2006 (lc, ). (Entered: 11/14/2006)
  • Doc 22 - MOTION to Dismiss 1 the Complaint by I. LEWIS LIBBY, JR. (Bourelly, Alex) Modified on 11/15/2006 (lc, ). (Entered: 11/14/2006)
  • Doc 25 - MEMORANDUM in support of 22 MOTION to Dismiss 1 the Complaint by I. LEWIS LIBBY, JR. (Attachments: # 1 Text of Proposed Order)(Bourelly, Alex) Modified on 11/15/2006 (lc, ). (Entered: 11/14/2006)
  • Doc 26 - MOTION to Dismiss with Supporting Memorandum of Law by RICHARD L. ARMITAGE. (Attachments: # 1 Exhibit A)(Waldman, Michael) (Entered: 11/14/2006)
  • Doc 27 - MOTION to Dismiss 17 Amended Complaint by KARL C. ROVE. (Attachments: # 1 Memorandum of Points and Authorities - Part 1# 2 Memorandum of Points and Authorities - Part 2# 3 Text of Proposed Order Proposed Order# 4 Exhibit A)(Luskin, Robert) Modified on 11/15/2006 (lc, ). (Entered: 11/15/2006)
  • Doc 28 - MOTION to Dismiss by UNITED STATES OF AMERICA. (Attachments: # 1 Memorandum in Support# 2 Certification of Scope of Employment# 3 Text of Proposed Order)(nmw, ) (Entered: 11/15/2006)
  • Doc 29 - STATEMENT of Interest by UNITED STATES OF AMERICA. (nmw, ) (Entered: 11/15/2006)

Those are the last entries on the docket as of 9:00 AM Friday, December 8, 2006.

cboldt

Docket entry re: Wilson's civil case. No decision until sometime after February 15, 2007.



MINUTE ORDER: Upon consideration of 19 the joint motion for entry of a proposed briefing schedule, it is hereby ORDERED that the motion is GRANTED; it is further ORDERED that defendant Richard L. Armitage shall file responsive pleadings to plaintiffs' amended complaint by not later than 11/14/2006; it is further ORDERED that plaintiffs shall file their opposition to defendant Armitage's responsive pleadings by not later than 1/16/2007; and it is further ORDERED that defendant Armitage shall file any reply to plaintiffs' oppositions by not later than 2/15/2007. Signed by Judge John D. Bates on 10/10/2006.(lcjdb2) (Entered: 10/10/2006)

cboldt

Those same deadlines appear for the other defendants in the case as well, in an order entered on September 20 -- "Set/Reset Deadlines: Defendants' responsive pleadings due by 11/14/2006. Plaintiffs' oppositions to defendants' responsive pleadings due by 1/16/2007. Defendants' replies to plaintiffs' oppositions due by 2/15/2007. (lcjdb2) (Entered: 09/20/2006)"


That new anti-spam facility here is a pain in the ass.

Rocco

That Winds Of Change link has been scrubbed.

Walter

Regarding the Gilmore case, may I be the first to lay odds (one will get you five) that the Supremes will not reverse the Ninth Circuit for being excessively deferential to the government?

When I was younger, I carried a quote from Tolstoy which read in substance: "It is immoral to pledge allegiance to a law without first having knowledge of the substance of that law".

It's a good part of why I went to law school.

Lynn

Fitzgerald's attempting to recreate his public persona with his latest media appearance as the savior against Derrick Shareef, 22, of Rockford, "would-be" terrorist. We appreciate would-be terrorists being apprehended by the proper authorities. My concern with Fitzgerald showing up to save the day is that I associate him with fabricating evidence towards his own personal agenda in order to gain fascistic political clout within our government.

Lynn

...and the facts being clearly established against Shareef, Fitzgerald's appearance affects his public credibility.

cboldt

More filings today. Some action on CIPA 6(c) activities, where the substance of the action remains "classified" for the time being.



Doc 215 - ORDER granting 212 U.S.A.'s Supplemental Motion Pursuant to CIPA Section 6(c) for Substitution in Lieu of Disclosure of Classified Information as to I. LEWIS LIBBY (1); U.S.A. shall complete a classification review of this Court's 12/8/06 Opinion by 12/22/06.Signed by Judge Reggie B. Walton on 12/8/06. (mlp) (Entered: 12/11/2006)


Set Deadline as to I. LEWIS LIBBY: Classification Review of the Court's 12/8/06 Opinion is due by 12/22/2006. (mlp) (Entered: 12/11/2006)


Doc 216 - MEMORANDUM OPINION as to I. LEWIS LIBBY. (CLASSIFIED INFORMATION) Signed by Judge Reggie B. Walton on 12/8/06. (mlp) (Entered: 12/11/2006)


Doc 217 - TRANSCRIPT of CIPA Hearing Proceedings as to I. LEWIS LIBBY before Judge Reggie B. Walton held on 11/29/06. Court Reporter: Bryan Wayne. (CLASSIFIED INFORMATION) (mlp) (Entered: 12/11/2006)


Walter

Thanks cboldt.

Any thoughts on whether the substitution approved addresses all of Libby's outstanding requests for admission of classified info?

It seems to me that if the Court approves a solution acceptable to the Government, the 6(a) standards appeal should be mooted. What am I missing?

cboldt

Here is the text of Walton's December 8 Order.

Case 1:05-cr-00394-RBW Document 215 Filed 12/11/2006 Page 1 of 1

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ORDER

On November 7, 2006, the Court commenced hearings pursuant to Section 6(c) of the Classified Information Procedures Act ("CIPA"), 18 U.S.C. App. III (2000), to assess whether the substitutions proposed by the government for the documents and information this Court had ruled are relevant and admissible during the CIPA Section 6(a) proceedings "provide the defendant substantially the same ability to make his defense as would disclosure of the specific classified information." For the reasons set forth during the CIPA Section 6(c) proceedings and in the accompanying Memorandum Opinion, it is hereby,

ORDERED that the Government's Supplemental Motion Pursuant to CIPA Section 6(c) for Substitutions in Lieu of Disclosure of Classified Information is GRANTED. It is further

ORDERED that the government shall complete a classification review of this Court's December 8, 2006 Opinion by December 22, 2006.

SO ORDERED this 8th day of December, 2006.

-- "Any thoughts on whether the substitution approved addresses all of Libby's outstanding requests for admission of classified info?" --

Only that the record is sparse. The docket entries include terms such as "proposed substitutions," "revised proposed substitutions," and "supplemental motion for substitutions."

-- "It seems to me that if the Court approves a solution acceptable to the Government, the 6(a) standards appeal should be mooted." --

Right on.

Walter

"Right on."

Groovy.

cboldt

"Right on."


Groovy.

Farm out!

boris

dave's not here man

cboldt

Jurist take and from the AP, Judge Settles Fight Over Classified Info.


WASHINGTON (AP) - A federal judge all but resolved the protracted legal fight over classified information in the CIA leak case Monday, helping ensure the dispute would not derail former White House aide I. Lewis "Scooter" Libby's perjury and obstruction trial.

cboldt

MSNBC has a piece on the development as well.



Judge settles classified info fight in Libby case


A federal judge has accepted a series of redactions and substitutions proposed by Special Counsel Patrick Fitzgerald - to be provided to I Lewis "Scooter" Libby's defense team - which will limit what Libby can share with jurors at his upcoming trial on some of the specifics of his top-secret White House briefings. ...


The new substitutions submitted by Fitzgerald may also effectively end what prosecutors say was Libby's attempt to try to get the case dismissed by demanding so much sensitive information that the government would have no choice but to refuse. The legal gambit is called "graymail."

cboldt

Couple of filings today in the Libby case - Status Reports. Libby's is in "scanned" form, so I haven't prepared an html version of it as of now.



12/14/2006 219 STATUS REPORT by I. LEWIS LIBBY (Attachments: # 1 Exhibit A)(Walsh, Alexandra) (Entered: 12/14/2006)


12/14/2006 220 STATUS REPORT by USA as to I. LEWIS LIBBY (Kedian, Kathleen) (Entered: 12/14/2006)


From Status Report - Fitzgerald [Doc 220] ...



We have been advised that the White House has no current plans to assert privilege as to any classified documents in this matter. ...


The government does not intend to appeal the Court's ruling pursuant to CIPA Section 6(c), and the government will move to dismiss its Notice of Appeal on the Court's CIPA Section 6(a) ruling.

cboldt

A transcription of Libby's Status Report is available too ...


Status Report - Libby [Doc 219]


Quite a few "goodies" in it. Fitz's case is toast.

SunnyDay

8. Additional Issues

There is an outstanding issue regarding a discrete set of documents which we are

discussing with the defense. We have been working towards an agreed resolution with defense

counsel and have exchanged written proposals to resolve the matter, and can advise whether that

has been resolved by the time of the December 19, 2006 conference.

What might this be?

cboldt

-- "What might this be?" --

From Libby's Status Report [Doc 219] ...

Second, the defense may file, within the next two weeks, a motion to compel production of specific documents from periods the Court has ruled critical to this case. The documents Mr. Libby may move to compel were all the subject of previous discovery requests, requests that the government has denied. See Letter from John Cline to Patrick Fitzgerald, July 27, 2003 (sic) (attached as Ex. A to the Response of Defendant I. Lewis Libby to Government's In camera Declaration dated Dec. 7, 2006).

So, it's a reference to documents that are pertinent to Libby's defense, probably to support his preoccupation defense (seeing as how Fitz is negotiating), or less likely, to support one of the other lines of defense attack on the charge, such as the fact that the government knew that Libby wasn't the first leaker, or that the government knew Mrs. Wilson wasn't covert, etc.

cboldt

From Government Response to Libby's 3rd Motion to Compel Discovery [Doc 80 - April 5]

The government has produced to defendant all documents related to Mr. Wilson's trip that it received from the OVP. In addition, the government has produced to defendant documents, received from any source, relating to conversations, correspondence, or meetings involving defendant in which Mr. Wilson's trip was discussed, and has produced additional materials from the CIA and the State Department relating generally to Mr. Wilson's trip. The government declined to produce some documents related to Mr. Wilson's trip on that the ground that those documents were completely irrelevant to defendant's knowledge or communications regarding Mr. Wilson, Ms. Wilson, or Mr. Wilson's trip to Niger. The government is unaware of any documents reflecting communications between Mr. Wilson and the State Department regarding the "sixteen words" other than media reports and material that would fall within the Jencks Act if the government were to call Mr. Wilson as a witness.

Some documents produced to defendant could be characterized as reflecting a plan to discredit, punish, or seek revenge against Mr. Wilson. The government declined to produce documents relating solely to other subjects of the investigation, even if such documents could be so characterized as reflecting a possible attempt or plan to discredit or punish Mr. Wilson or Ms. Wilson. The government has no knowledge of the existence of any notes reflecting comments by former Secretary of State Powell regarding Ms. Wilson during a September 2003 meeting. (p. 7) ...

Nor is defendant entitled to expansive discovery on the basis of speculations that government officials may have been biased as a result of purported disputes among the various agencies concerning intelligence issues. (p. 12)

There are a number of other "declined" items noted in that filing. Probably stuff that Fitz knows will show the prosecution witnesses to be unreliable for one reason or another.

Here are URL's for more of the relevant filings (the post is tagged as spam when these are made into links:

noeasyanswer.blogspot.com/2006/04/libbys-reply-to-govt-response-re-3rd.html

Libby Reply to Government Response [Doc 82 - April 12]

noeasyanswer.blogspot.com/2006/05/libby-memo-in-support-of-3rd-motion-to.html

Libby's Supplemental Memorandum [Doc 104 - May 12]

noeasyanswer.blogspot.com/2006/05/government-response-to-libbys.html

Government Response to Libby's Supplemental [Doc 107 - May 19]

noeasyanswer.blogspot.com/2006/05/libbys-response-to-governments.html

Libby Reply to Government Response [Doc 108 - May 19]

noeasyanswer.blogspot.com/2006/06/court-order-re-libbys-third-motion-to.html

Court Order Re: Third Motion to Compel Discovery [Doc 112 - June 2]

SunnyDay

Thank you!!

MJW

For whatever reason, the Libby website seems to have moved from www.scooterlibby.org to www.scooterlibby.com.

clarice

Thanks. I wonder where it went.

topsecretk9

Any guess on the reporters? Kristoff and Pincus? 1x2x6 author? Leopold...LOL?

MJW

Finally, the defense has recently issued a subpoena to Robert Woodward of the Washington Post, which includes a request for an excerpt of the tape recording of an interview Mr. Woodward conducted of Richard Armitage.

I don't recall, has it been previously revealed that Woodward's interview with Armitage was taped? (Assuming that the tape recording is of the interview where Armitage talked about Plame.)

MJW

Regarding the CIPA substitutions in the government's case, Libby says:

In this regard, the defense notes that it may well object to the substitutions offered by the government, either under CIPA or under the general rules of evidence, including for example Fed. R. Evid. 106.
But Fitz says:
The Court need not approve the substitutions because the information redacted in the exhibits is being removed from the government's evidence, not the defense's, and what will be offered in evidence will be unclassified.
Suppose, for example, one of the items Fitz wants to substitute is the CIA's declaration that Plame's status was classified for the actual documents concerning her classification. Certainly, even though "the information redacted in the exhibits is being removed from the government's evidence, not the defense's" such evidence fails to provide Libby "substantially the same ability to make his defense," since it can't be meaningfully challenged.

MJW

I happened notice while doing a search that the folks over at firedoglake are gloating about Walton's latest CIPA ruling approving the government's current substitution. As much as I hate to admit it, I have a feeling they have a right to gloat. I suspect Walton caved in to Fitz in order to keep the trial on track by avoiding the delay for an appeal.

Bob

Fitzgerald Mum on Cheney in Leak Case

"Cheney could also help prosecutors undermine Libby's defense that he was so preoccupied with national security matters, he forgot details about the less-important Plame issue. Prosecutors argue that Plame was a key concern of the vice president, and thus would have been important to Libby."

Boy these fools really think it's Fitzmas again! I doubt for a minute that Cheney will "help" the prosecutors one bit... Fitz is no match for Cheney!

cboldt

Fixed link ...


Fitzgerald mum on Cheney in leak case

disAssociated Press - USA Toady

As for the prospect of VP Cheney testifying live, in the courtroom, Fitzgerald wrote this on December 14 ...

6. Witness Security Issues
The government does not anticipate any security issues with the witnesses it intends to call.
clarice

Very good catch, cboldt.And, Bob--excellent point.

clarice

OT: Nifong just flunked his first credibility test.
http://www.newsobserver.com/1185/story/521773.html

SunnyDay

Unreal.

MJW

In May, Libby filed a response concerning Fitz's desire to introduce into evidence Wilson's New York Times op-ed with Cheney's notations. In a footnote, the response asserts: "It is unclear to the defense how the government intends to authenticate this document given that it has previously represented that it does not intend to call the Vice President as a witness."

Fitz later said (orally in a hearing, I believe) that he hadn't said he wouldn't call Cheney. If the indications that Cheney won't be called are correct, then the question of foundation is raised again. I believe that the handwriting could be authenticated by someone familiar with Cheney's handwriting, but it still seems to me to be inadmissible hearsay.

I'd be grateful if any lawyers would offer an opinion.

topsecretk9

MJW

Add to that...I do believe that Fitz said he intended to show that scribbled clipping would obviously be perceived as marching orders for retaliation - that Libby would view that clipping as a command or something...how does Fitz intend to demonstrate that without calling Cheney?

SunnyDay

You know, if this was a Grisham novel, no one would want to read it because it's just too preposterous. We'd say Grisham had run out of ideas, hahaha.

clarice

My guess, is that that claim was--ahem--laughed out of court and we will not see the op ed in court.

Martin

Of course Cheney's going to testify!

I love the folks saying he'll claim executive privilege!

What branch of government do they think employs Fitzgerald?

clarice

If he does it will be as a rebuttal witness for Libby. I do not see Fitz calling him as a witness.

cboldt

The issue of newspaper articles in general (and the Cheney-annotated Wilson Op-Ed in particular) is best fleshed out in a series of filings initiated by the Court's inquiry regarding news articles the government intends to offer as evidence at trial.

http://noeasyanswer.blogspot.com/2006/05/fitzgerald-response-to-court-re-news.html

May 12 Government's Response to Court's Inquiry [Doc 105]

http://noeasyanswer.blogspot.com/2006/05/libbys-response-to-governments.html

May 19 Libby Response to Government's Response to Court's Inquiry [Doc 108]

http://noeasyanswer.blogspot.com/2006/05/governments-reply-to-libbys-response.html

May 24 Government's Reply to Libby's Response ... [Doc 110]

The issue is addressed briefly, at Footnote 1 in Walton's Order of June 2
[Doc 112]

This reality is not altered simply because the government intends to introduce into evidence at trial various news articles that discuss Ambassador Wilson's trip to Niger. See Government's Response to Court's Inquiry Regarding News Articles the Government Intends to Offer as Evidence at Trial. The government does not intend to introduce these articles for the truth of the matters asserted, id. at 1, but rather, only for the limited purpose of demonstrating that the defendant had a motive to make the statements to the media representatives that form the basis for the charged offenses. Id. at 2-7. As such, the truth of the articles has no bearing on the prosecution of this case and the jury will be so instructed if requested by either party. Moreover, as the government has noted, it is highly unlikely that it will seek to introduce as evidence the full text of the articles during the trial. And the Court suspects that it would not permit the government to introduce the entire articles if it sought to do so. What will be presented to the jury will be addressed by this Court in response to a properly filed motion in limine.
cboldt

Regarding admissibility and purpose of news articles, see also the transcript of the May 5 Motions Hearing [Doc 106]

SunnyDay

Well, if you go by the presser and the indictment...

I can hear him now...

clarice

I think if he tries to establish from that op ed a plan to out Plame, he'll get it rammed down his throat. There isn't even any evidence that Cheney showed this to Libby. Again. I think Fitz will scratch that approach.

SunnyDay

a plan to out Plame

He can't really even bring that up, can he, without opening another can of worms?

MJW

Thanks to those who responded to my question about Cheney's notes on the op-ed. cboldt alludes to something (by quoting Walton) I realized shortly after I'd made my comment and gone away from my computer: the "offered for some other reason than truth" hearsay exception. As applied to the notes (as separate from the content of the various news articles), it seems to me that unless the government can at the very least establish when Cheney added the comments that they should be excluded. I note that Libby testified that he never saw the notes until he was shown them in the grand jury.

I've previously mentioned that I'm surprised Libby hasn't pressed harder to exclude most of the articles as being substantially more prejudicial then probative by filing a motion in limine. I see from Walton's footnote that he also expected such a motion. I think that Walton said he wanted all the motions in limine to be filed by some date that has now passed. (As an aside, I wonder if Libby will still be allowed to file motions in limine concerning the Jencks material that will be turned over next week).

I see Tom has a new Libby posting up, so I'll move over to that thread for any further comments.

The comments to this entry are closed.

Wilson/Plame