No Greymail For You
Greymail and CIPA review class:
Yesterday PowWow posted an excerpt from a December 11th Order by Judge Walton in the Libby case. I immediately checked the Court's electronic filing system called Pacer and all I found was a page with a caption box that had totally been redacted out. So, first of all, mad props to PowWow whose research skills have left me humbled and awestruck. The excerpt PowWow posted can be found here. The bottom line of the decision is:
ORDERED that the government’s Supplemental Motion Pursuant to CIPA Section 6(c) for Substitutions in Lieu of Disclosure of Classified Information is GRANTED.
This decision comes after, and relies upon, an exhaustive 38 page decision rendered by Judge Walton on December 1st which was originally wholly redacted (like so many tantalizing items on that docket sheet). However, in a subsequent ruling, Judge Walton ordered Team Fitz to work on declassifying as much of that decision as possible. In yesterday's ruling he orders Team Fitz to try to declassify as much of his December 8th ruling as possible. (the December 8th ruling is another blank page. Sigh.)
So, in order to understand the significance of yesterday's ruling, we have to examine the December 1st ruling.
The December 1st decision came as a result of a series of hearings that began on September 27th pursuant to Section 6(a) of the Classified Information Procedures Act (CIPA) concerning the "use, relevancy, and admissibility" during trial of certain classified documents and information that Irving wishes to use as part of his defense.
First a refresher about CIPA. CIPA was created in an effort to prevent the "greymail" defense. Greymail is a defense maneuver made popular during the Iran Contra investigations. Greymail is a tactic whereby the defendant claims that he MUST MUST MUST use one or more pieces of information, which just happens to be classified, in the defense of his case. The Government, usually on the same page with itself, is left to decide which it prefers–which is more important to the public good–keeping it's classified information secret or prosecuting this individual.
In cases where the greymailing defendant is let's say an illegal arms dealer, that analysis makes some sense. However, when the defendant is a high ranking member of the government and has friends and colleagues making the decision about declassification, there is an inherent conflict of interest within the government. So, on the one hand you have the prosecutor who will usually feel that any non-super-secret secrets maybe should be declassified and on the hand, friends and colleagues of the high ranking member of government who think nothing should be declassified because otherwise the case against their buddy will be dismissed.
This gets more complicated because normally the entity that OK’s declassifying a given piece of information or document is the OCA (Original Classifying Agency). Well, if you happen to be Dick Cheney's right hand man and Dick Cheney was the OCA for most of the documents you want to use, oh, and if many people speculate that you are the firewall protecting ole' Deadeye, well…….. hells bells, poor Fitz really had his work cut out for him didn't he?
So, came the hearings. Lots of hearings. Hearings on 9/27, 9/28, 10/3, 10/26, 10/30 and 11/1. And at least 11 separate filings of briefs, declarations and other writings by the lawyers that I could fathom from the docket sheet. Team Fitz (which is tiny compared to Team Irving) put out an incredible amount of workproduct over the last few months and it seems to have paid off.
Anyway, back to CIPA. It is a procedure which requires the court to determine whether the documents the defendant claims he MUST MUST MUST have in order to present his defense are indeed useful to the defense theory enunciated by the defense, whether they are relevant to the crimes charged, and whether they will be admissible under the Federal Rules of Evidence which bar, for example, hearsay. I mention hearsay at this point because much raw intelligence is at best hearsay and often double, triple or quadruple hearsay, so I would suspect that much of that would be a problem for the defense.
In addition to determining use, relevancy and admissibility under CIPA Section 6(a), the Judge also rules under a separate analysis whether substitutions for the classified information offered by the government allow the defendant to fully present his theory of the defense.
Team Irving has a juicy laundry list of classified information it intends to present in support of it's "memory defense." I'll get to that in a separate post. Bottom line, in the December 1st decision, Judge Walton laid out nine separate subject areas where Team Irving contended that Libby was so distracted that any other information was just driven from his head. That left Team Fitz in a position of having to come up with suitable substitutes for these very juicy bits. Based on yesterday's decision, the tall man in the rumpled suit has cleared that hurdle.
I just love it when the good guys win. So my most heartfelt compliments to all of Team Fitz for a job well done, and another shout out to our own PowWow for keeping us so up to date.
More to follow………………..