Judge withholds classified docs from Libby

Disclosure could cause 'grave damage' to the national security
By Joel Seidman
NBC Nightly News Producer


Updated: 12:29 a.m. CT Aug 18, 2006
WASHINGTON - A federal judge today ordered that certain "extremely sensitive" classified documents be withheld from Vice President Cheney's former top aide, I Lewis "Scooter" Libby.

Judge Reggie Walton, writes in a court filing, that he has "carefully reviewed" the requests to withhold the documents from Special Counsel Patrick Fitzgerald, and from the CIA, which were provided to him ex parte, in camera, and found that the documents should be omitted from the classified materials requested by Libby's attorneys.

Judge Walton writes that the documents he has withheld are, "extremely sensitive and their disclosure could cause serious if not grave damage to the national security of the United States."


In previous weeks, the CIA has provided Libby, in two batches, classified documents which the judge court had ordered turned over to his defense team.

The CIA has provided to Libby documents which are either redacted versions of the classified papers which Libby viewed during his morning intelligence briefings with the Vice President, or summaries of the subject matter contained in those documents.

Special Counsel Patrick Fitzgerald has said in recent months that he does not expect the White House to claim executive privilege to attempt to block Libby from using classified intelligence material in his defense against perjury charges.

But, Fitzgerald told Judge Walton in June that the White House has designated certain documents that it is concerned about being made public during a trial.

Workarounds expected
If those documents are among the ones that Libby wants to prepare his defense, Fitzgerald said, he and Libby's lawyers will work out solutions with the judge in secret, under the Classified Information Procedures Act -- (CIPA) a law designed to deal with defendants' access to classified government information.

The classified documents the CIA provided Libby are for the time periods: 7 June - 14 July 2003, 12-16 October 2003, 24-28 November 2003, 3-7 March 2004, and 22-26 March 2004.

The June-July time period is crucial to the charges brought against Libby. It is alleged by Fitzgerald that in mid June, 2003 Libby was first informed by the under secretary of state Marc Grossman that former Ambassador Joe Wilson's wife works for the C.I.A. and that she might have been involved with Wilson's Niger trip. On June 23rd, Libby had the first meeting with NYTimes reporter Judith Miller. Libby is alleged to have informed her that Wilson's wife might work at a bureau of the CIA.

On July 6th, in an Op-Ed article in Times, Wilson asserted that the White House ''twisted'' the intelligence about Iraq's pursuit of nuclear material. Libby maintains that he believed he was learning about Wilson's wife's identity for the first time when he spoke with NBC Washington Bureau Chief Tim Russert on July 10 or 11 regarding coverage of the Niger issue by MSNBC correspondent Chris Matthews. On July 14th, a column by Robert Novak revealed that Mr. Wilson's wife, ''Valerie Plame, was an agency operative on weapons of mass destruction,'' prompting an investigation into whether government officials disclosed her identity.

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Russert and Grossman will likely be called as government witnesses at Libby's trial which is scheduled to begin in January 2007.

Expected defense
Attorney's for Libby will argue that, in many cases, it is the government witnesses who have misremembered the facts, and that any errors Libby made in describing the events were the result of "confusion or faulty memory, not any intent to misrepresent the truth."

In fact, Libby has filed court papers to seek to admit the expert testimony of memory expert, Dr. Robert A Bjork, chairman of the psychology department at UCLA. Judge Walton has not yet decided if Bjork will be allowed to testify but said that Fitzgerald has until September 7th, to reply to Libby's motion on the memory expert.

Libby was charged in October, 2005 with lying to the FBI and a federal grand jury about how he learned the name of CIA officer Valerie Plame and when he subsequently told three reporters about her. He faces five counts of perjury, making false statements and obstruction of justice.

Much of the classified material Libby was provided may be given to the jury in the form of summaries of the classified material.

Libby's trial is scheduled to begin in January 2007.

Joel Seidman is an NBC producer, based in Washington, DC

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