[Mb-civic] Prosecutor Says Libby Seeks to Thwart Criminal Case By Neil A. Lewis The New York Times

[Michael Butler]

    Go to Original

    Prosecutor Says Libby Seeks to Thwart Criminal Case
    By Neil A. Lewis
    The New York Times

    Saturday 18 February 2006

    Washington - A federal prosecutor has said I. Lewis Libby Jr., former
chief of staff to Vice President Dick Cheney, is trying to sabotage the
criminal case against him by insisting through his lawyers that he be given
sensitive government documents for his defense.

    In a court filing on Thursday night, the prosecutor said requests by Mr.
Libby's lawyers for documents, including the daily intelligence briefs given
to the president for nearly a year, were "a transparent effort at
'graymail.' "

    The prosecutor, Patrick J. Fitzgerald, said the requests for a large
amount of sensitive information beyond what they had been given was
unjustified. Mr. Fitzgerald told the federal judge hearing the case that
defendants like Mr. Libby had an incentive to derail their trials by asking
for sensitive documents that the government might not want discussed openly.

    Graymail is the practice of discouraging a prosecution from proceeding
by contending that a defendant may need to disclose classified or sensitive
information as part of a full defense. Such an approach can force the
government to choose between dropping the prosecution or allowing the
information to be disclosed at a trial.

    Before 1980, some officials escaped prosecution by threatening to
disclose unspecified secrets in open court. Congress enacted the Classified
Information Procedures Act in 1980 to ensure that the government was not
surprised by any disclosures at trial.

    If the defense intends to use classified information, it has to inform
the government, and then the two sides argue before a judge in secret on
whether the information is needed for full defense. If a judge decides that
the defendant is entitled to the information, the government has to decide
whether to accept the likelihood that the information may be disclosed in a
trial or drop the prosecution.

    John D. Cline, a lawyer in San Francisco and an authority on the
classified-procedures law who is representing Mr. Libby, challenged the
accusation that the defense was engaging in graymail. Mr. Cline said the
1980 law made graymail impossible because the government knew exactly what
information the defense was seeking, and a judge must rule on whether it is
necessary to the defense case.

    "We are working lawfully and properly through the C.I.P.A. procedures to
obtain documents essential to Mr. Libby's defense," he said. "All we want is
a limited number of key documents that Mr. Libby either wrote or reviewed
during the most critical period in this case."

    Mr. Libby is charged with five felony counts, accusing him of lying to
investigators about his role in the disclosure of the identity of a Central
Intelligence Agency operative, Valerie Wilson. His lawyers have said they
intend to mount a defense built on the idea that he was dealing with issues
far more momentous than the disclosure of Ms. Wilson's identity to
reporters. To that end, they have asked Mr. Fitzgerald to turn over many
documents from the vice president's office and the C.I.A.

    Mr. Libby's lawyers have asked Mr. Fitzgerald to give them the
President's Daily Brief for 277 days beginning in May 2003. They have said
those documents "are material to establishing that any misstatements he may
have made were the result of confusion, mistake and faulty memory resulting
from his immersion in other, more significant matters, rather than
deliberate lies."

    Mr. Fitzgerald called the request "breathtaking" and noted that the
daily brief was "an extraordinarily sensitive document." He said the
disclosure of part of the Aug. 6, 2001, daily brief to the Sept. 11
commission was the sole instance of a daily brief's being publicly
disclosed.

    In addition, the lawyers have asked Mr. Fitzgerald to provide
information that he obtained from reporters about other officials who might
have spoken to them about Ms. Wilson.