I. Lewis Libby
Haraz N. Ghanbari  /  AP file
Former White House aide I. Lewis "Scooter" Libby, indicted on perjury and obstruction charges last year in the CIA leak scandal, will have closed hearing to determine if he may use classified material as part of his defense.
By Producer
NBC News
updated 9/21/2006 2:36:04 PM ET 2006-09-21T18:36:04

The judge in the CIA leak case ruled Thursday that if Special Counsel Patrick Fitzgerald feels that admitting certain classified documents at the upcoming trial of I Lewis "Scooter" Libby can jeopardize national security, Fitzgerald can then move to dismiss the perjury charges against Libby.

Judge Reggie Walton cannot automatically allow classified materials to be admitted at trial. He first must go through a series of closed hearings under CIPA regulations. CIPA, the Classified Information Procedures Act, protects and restricts the discovery of classified information in a way that does not impair the defendant's right to a fair trial. It also allows the government to propose a redacted version of a classified document as a substitution for the original, having deleted only non-relevant classified information.

In his ruling this morning, the Judge Walton, has given a technical legal victory to Libby's attorneys concerning the admissibility of classified materials they want to present at trial for their defense.

Three-part test
The issue concerns determining a standard for which the judge will review these secret documents, in a series of closed hearings later this month, to determine the use, relevance, or admissibility of classified information.

Fitzgerald argues that because of the sensitive national security value of the classified materials, a special three part test must apply before determining if a document can be admitted at trial.

That test, according to Fitzgerald, must include: (1) that the document is relevant; (2) that the document is "helpful to the defense," and (3) that the defendant's interest in disclosure of the document outweighs the government's need to protect the classified information.

Victory for Libby
Walton disagreed with Fitzgerald and favored Libby's attorney's argument that in reviewing the classified material to be presented at the hearing, he must simply apply the Federal Rules of Evidence.

Walton also suggested that, "if the government is still not satisfied that the classified information is adequately protected at the conclusion of these hearings, the government has the power to preclude entirely the introduction at trial of the classified information. While invocation of this option may require dismissal of this case."

Walton argues against adopting the balancing test proposed by the government, because it, "could infringe on the defendant's constitutional right to put on a defense by preventing him from introducing relevant and otherwise admissible evidence at his trial because the government's interest in nondisclosure was considered of greater significance."

Crush of national security work
While is it not publicly known which classified materials are at issue, Libby's attorneys have requested and have been given in recent months two batches of summaries and redacted versions of classified morning intelligence briefings which Libby attended with Vice President Cheney in 2003.

Libby's attorneys wish to present at trial a picture of their client as being overwhelmed by the crush of critical national security work at the White House — a client who may have misremembered, what they wish to portray as insignificant, the identity of former ambassador Joseph Wilson's wife, Valerie Plame who was a CIA employee at the time. Using certain classified documents at trial his lawyers could underscore that Libby was involved with important work at the time of the Plame leak.

Crux of the case
Fitzgerald's case rests on the premise that Libby lied to the FBI and to a grand jury about his own conversations with reporters confirming that Plame worked for the CIA and was somehow responsible for her husband's fact finding trips to Africa in search of proof about Iraq's alleged quest for fissile materials. Wilson wrote in a New York Times op-ed, in July 2003, that that quest did not exist, and that the administration was "twisting" the facts about Iraq's determination to procure Niger's yellowcake.

Fitzgerald has said in court filings that the Plame leak from Libby was orchestrated specifically to undermine the credibility of Wilson's public pronouncements — which Fitzgerald says consumed the vice president's office for several weeks in the summer of 2002.

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. Libby's trial is scheduled to begin Jan. 17, 2007.

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