Scooter and the Munchkins

Part One: "A people who mean to be their own Governors must arm themselves with the power which knowledge gives." -- James Madison; quoted by Judge Tatel, US Court of Appeals; re: Grand Jury Subpoena, Judith Miller; 4-19-05
Earlier this week, Patrick Fitzgerald informed Judge Reggie Walton that the CIA has estimated it will take 12 weeks to produce the information outlined in the judge's 2-27 recommendations to narrow the scope of discovery. It is expected that Judge Walton will make a decision soon on what information that Team Libby is entitled to from the CIA, in regard to the PDBs (President's Daily Briefings). These documents, described as "the most important current intelligence on critical issues relating to the national security of the United States" (Declaration of Marilyn Dorn; CIA Information Review Officer; 3-2-06), are provided to the president and vice president at the beginning of every day.
In the period between Judge Walton's recommendations and Fitzgerald's response, Team Libby filed several motions that are available on various internet sites. These include: {1} "Response of I. Lewis Libby to March 2, 2006 CIA Declaration and Court's February 27 Order," filed on 3-7; {2} "Reply in Support of Motion of I. Lewis Libby to bar Ex Parte Submissions Under CIPA 4 Without A Particularized Showing of Exceptional Circumstances," filed 3-15; and {3} "Third Motion of I. Lewis Libby to Compel Discovery Under Rule 16 and Brady," filed 3-17-06.
These documents give us some hints of what Team Libby is planning for the January '07 trial of Mr. Libby. Let's take a closer look at some of the things his team of lawyers is focusing upon.
Mr. Libby's defense team has requested an enormous amount of information they say is needed to prove that Scooter was so busy in the summer of 2003, that he plum forgot about all of his conversations with reporters Judith Miller, Matt Cooper, and Tim Russert when he spoke to FBI investigators and testified to the grand jury. Team Libby is fighting restrictions on access to such information, and claim that the "government distorts Mr. Libby's defense when it suggests Mr. Libby does not need the PDBs because the government will 'agree he was important and he was a busy person'." (3-7; page 2)
They ask for access to requests in three categories: the PDBs and accompanying material; records of Libby's questions made to the CIA; and the CIA responses to Scooter's questions. The Agency had said it would take 9 months to produce everything requested by the defense attorneys, or 3 months to produce the smaller amount Judge Walton recommended. Team Libby questions "how many people it assumes will work on the production and for how many hours per week." They suggest that Judge Walton "might well conclude that the CIA is engaged in unjustified foot-dragging," which they attribute to the Agency's lacking "an entirely objective and impartial perspective." (3-7; page 3) They note that they "strongly suspect that the CIA has exaggerated the difficulty of obtaining the responses to Mr. Libby's inquiries." (3-7; page 4)
Team Libby goes on to "withdraw our request for the items .... provided only to Mr. Libby. Thus, the CIA need only produce the Vice President's morning briefing notebook for the dates at issue..." They offer to review these documents, without "copying the materials in question," at a site "maintained by the Department of Justice at the Department of Homeland Security in Washington, DC," with only Libby and the four attorneys reading them. (3-7; pages 6-7)
Team Libby takes great offense that Fitzgerald would attempt to limit their access to highly classified information. They note that he "relies extensively on cases involving alleged terrorists (and) spies ..... But there is obviously no such risk here. Mr. Libby -- like the defendants in the North, Poindexter, and George cases .... -- has diligently protected some of this country's most sensitive secrets throughout his many years of public service.
"In an unseemly attempt to avoid the force of the Iran-Contra cases, the government asserts that '(u)nderlying the crimes charged in this case is the failure by a senior national security official' -- presumably Mr. Libby -- 'to adequately safeguard sensitive classified information'." Team Libby again questions if there isevidence that Scooter's actions were "irresponsible .... even if it turns out Ms. Wilson's status was classified. .... In any event, the government cannot seriously contend that disclosure of even the most sensitive intelligence information to Mr. Libby or his defense team poses a risk to national security. Such a reckless accusation dishonors Mr. Libby''s loyal service to this country. ... The government's false suggestion that Mr. Libby cannot be trusted with classified information is a foul blow." (3-15; pages 3-5)
In the 3-17 motion, Team Libby continues the fiction that Fitzgerald "has an interest in continuing to overstate the significance of Ms. Wilson's affiliation with the CIA." They claim that Scooter "viewed Ms. Wilson's identity as at most a peripheral issue,(page 3); that in the context of the controversy over the 16 words, "the role of Ms. Plame was peripheral," (page 4); and that while the "indictment that to Mr. Libby and other government officials, Ms. Wilson's role in sending her husband to Africa was important. But in reality, Ms. Wilson was not important." (page 27)
This motion also notes that "the government informed the defense that it intends to introduce all of Mr. Libby's grand jury testimony at trial. ... The two transcripts collectively total 389 pages. .....(W)e reserve the right to object to the admission of the entire transcript of Mr. Libby's grand jury testimony at the appropriate time." (pages 10-11)
Part Two: "Furthermore, there is intense anger over the White House's revealing the identity of Plame, who may have been active in a sting operation involving the trafficing of WMD components. ... 'Only a very high-ranking official could have had access to the knowledge that Plame was on the payroll' of the CIA, an intelligence source told me." -- Joe Klein; Plenty to wear About; Time; 7-5-04
Team Libby's continued efforts to question if Valerie Plame Wilson was covert seems curious. On page 28 of Judge Tatel's decision on the Miller appeal (4-19-05), he notes, "Her exposure, therefore, not only may have jeopardized any covert activities of her own, but also may have endangered friends and associates from whom she might have gathered information in the past." (Also see: "The CIA Leak: Plame Was Still Covert" by Michael Isikoff; Newsweek; 2-13-06)
In their efforts to deny the significance of Plame's work with the CIA, Team Libby goes beyond the bounds of decency. On pages 9- 10 of their 3-7 document, they attempt to "illustrate" the "urgency" of the PDBs that "might well have still consumed (Scooter's) attention on June 23 or July 12, or even later," by using the August 6, 2001 PDB as an example. That was, of course, the PDB released in redacted form by the 9-11 Commission, "Bin Ladin Determined to Strike in US." Team Libby notes that a "summary of the general subject matter of the item does not accurately convey its urgency. To make that assessment, the details are necessary -- the number and sophistication of the Al-Qaeda members allegedly planning the attacks, the state of that planning, the current ability of the terrorists to carry out a planned attack, and -- perhaps most important -- the source of the intelligence community's information about the planned attacks, the reliability of those sources, and the extent which other intelligence corroborates their information. In short, Mr. Libby needs what the Supreme Court call the 'persuasive power of the concrete and particular' to convince the jury that in a welter of more urgent matters, he confused or forgot the snippets of conversations concerning Ms. Wilson."
It appears that Mr. Libby's attorneys wish to present Scooter as a public servant dedicated to protecting the public from Usama bin Laden, despite the difficulties created by the CIA and Joseph Wilson. Scooter was so busy protecting us, that he simply forgot a few details about conversations with journalists. His grand jury testimony? Forget that, too. Concentrate on VP Cheney's PDBs. Even if Patrick Fitzgerald is correct about Plame being a covert agent of the CIA, she was not important to Scooter. This fine man was too busy protecting you from terrorists.
I don't think that it will play too well against his grand jury testimony. Just look at this clip quoted in the the 10-31-05 indictment (pages 21-22):
Q: And let me ask you this directly. Did the fact that you knew the law could turn, the law as to whether a crime was committed, could turn on where you learned the information from, affect your account for the FBI when you told them that you were telling reporters Wilson's wife worked at the CIA but your source was a reporter rather than the Vice-President?
A: No, it's a fact. It was a fact, that's what I told the reporters.
Q: And you're, you're certain as you sit here today that every reporter you told that Wilson's wife worked at the CIA, you sourced it back to other reporters?
A: Yes, sir, because it was important for what I was saying and because it was -- that's what -- that's how I did it.
....
Q: The next set of questions from the Grand Jury are -- concerning this fact. If you did not understand the information about Wilson's wife to have been classified and didn't understand it when you heard it from Mr. Russert, why were you so deliberate to make sure that you told other reporters that reporters were saying it and not assert it as something you knew?
A: I want -- I didn't want to -- I didn't know if it was true and I didn't want people -- I didn't want reporters to think it was true because I said it. I -- all I had was that reporters are telling us that, and by that I wanted them to understand that it wasn't coming from me and that it might not be true. Reporters write things that aren't true sometimes, or get things that aren't true. So I wanted to be clear they didn't, they didn't think it was me saying it. I didn't know if it was true and I wanted them to understand that. Also, it was important to me to let them know that because what I was telling them was that I don't know Mr. Wilson. We didn't ask for his mission. That I didn't see his report.Basically, we didn't know anything about him until this stuff came out in June. And among the other things, I didn't know if he had a wife. That was one of the things I said to Mr. Cooper. I don't know if he's married. And so I wanted to be very clear about all this stuff that I didn't. And the only thing I had, I thought at the time, was what reporters are telling us."