I. Lewis Libby
Haraz N. Ghanbari  /  AP file
Former White House aide I. Lewis "Scooter" Libby has joined with Vice President Dick Cheney in asking a judge to dismiss a civil suit accusing them of conspiring to destroy the career of a CIA employee.
By Producer
NBC News
updated 11/16/2006 3:08:59 PM ET 2006-11-16T20:08:59

For the past few months all the public could know about the goings on during numerous closed-door hearings in Courtroom #16 were from one-line court filings indicating the proceedings were dealing with requests from I Lewis "Scooter" Libby - Vice President Cheney's former chief of staff - to include classified materials in his defense of perjury and obstructions charges in the CIA leak trial.

Next month all that will change.  Judge Walton will give the public a peek at the issues he has had to rule on concerning the thousands of classified document in question.

Until now carts full of sealed boxes entered and exited Judge Reggie Walton's courtroom, grey-suited CIA document specialists accompanied them, and court security officers roamed the hallways on the sixth floor of the E. Barrett Prettyman Federal courthouse, but both the prosecutors and defense attorneys were mum on exactly what was going on.  All the public knew from the filings was that it was a tense courtroom drama that was unfolding inside.

The judge, in a ruling, acknowledged that he has been forced by law to keep the public out.  He writes, "While this Court has strived to make the proceedings in this action as transparent as possible, because the defendant seeks to introduce at trial evidence that is currently classified, this Court has been required to close to the public may proceedings and seal a substantial number of pleadings."

In today’ ruling, Walton ordered the CIA and Special Counsel Patrick Fitzgerald to begin a review of classified court filings and transcripts of closed hearings related to requests by I Libby, who is seeking to introduce certain classified documents at trial. Walton said he wants the government to provide him redacted versions so that the public will have an opportunity to view them.

The judge also ruled on how much classified evidence must be made available to the Libby defense team in the C.I.A. leak case, but nearly all of the ruling was sealed so it is not clear what records must be admitted.

Judge Walton wants the national security agencies to review his opinion on the classified evidence made available to Libby, papers filed by both parties, and transcripts of all the closed hearings, and report back to him on what can be released by Dec. 1.

Again today, in federal court, the prosecution and Libby's lawyers are jousting, in a closed hearing, over how much the secret documents must be redacted to preserve national security but still provide a fair trial to Libby.

Prosecutors say Libby is trying to get the case dismissed by demanding so much sensitive information that the government has no choice but to refuse. The legal gambit is called "graymail."

Earlier this week Walton handed Libby a legal victory by allowing him to use at trial some classified material.  Libby's legal team has been in a protracted battle with Special Counsel Patrick Fitzgerald over Libby's desire to present classified documents at trial portraying him as so consumed by matters of national security importance in the summer of 2003, that any mistakes he made remembering his conversations with three reporters about Valerie Plame were, "inadvertent and not the product of willful disinformation."

Judge Walton ruled that the substitutions and summaries of classified documents which Fitzgerald has offered the Libby defense team -  instead of their using actual classified documents at trial -  are inadequate for them to put on a proper defense. Walton ordered Fitzgerald to "go back to the drawing board and come forth with a more balanced proposal."  But Walton warned Libby that his ruling, "does not give the defendant 'free reign' over his testimony."

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At issue are classified daily intelligence briefings (PDBs) and terrorism threat assessments (TTMs) which Libby wants to use as evidence to show he was so preoccupied with sensitive national security matters that he did not remember - what his lawyer's describe as "insignificant" - details about his conversations with reporters about Valerie Plame, the wife of former Amb. Joseph Wilson. A majority of those PDBs were attended by Libby and the Vice President.

Fitzgerald has spent three years investigating whether officials in the Bush administration revealed Plame's CIA job to reporters. Nobody was charged with the leak itself.

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

Joel Seidman is an NBC News producer based in Washington.

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