U.S. v. Libby

• Decision Date: 22 December 2006
• Docket Number: No. CRIM 05-394 RBW.,CRIM 05-394 RBW.
• Citation: 467 F.Supp.2d 20
• Parties: UNITED STATES of America, v. I. Lewis LIBBY, Defendant.
• Court: U.S. District Court — District of Columbia

467 F.Supp.2d 20

UNITED STATES of America, v. I. Lewis LIBBY, Defendant.

No. CRIM 05-394 RBW.

United States District Court, District of Columbia.

December 22, 2006.

COPYRIGHT MATERIAL OMITTED

Patrick Fitzgerald, Office of the United States Attorney, Debra R. Bonamici, Office of the Special Counsel, Chicago, IL, Kathleen Kedian, Peter Robert Zeidenberg, U.S. Department of Justice, Washington, DC, for United States of America.

MEMORANDUM OPINION¹

WALTON, District Judge.

Currently before the Court is the Government's Supplemental Motion Pursuant to CIPA Section 6(c) for Substitutions in Lien of Disclosure of Classified Information. On November 7, 2006, the Court commenced hearings pursuant to Section 6(c) of the Classified Information Procedures Act ("CIPA"), 18 U.S.C.App. III (2000), to assess whether the substitutions proposed by the government for the documents and information this Court had ruled are relevant and admissible during the CIPA Section 6(a) proceedings "provide the defendant substantially the same ability to make his defense as would disclosure of the specific classified information."² 18 U.S.C.App. III, § 6(c). For the reasons that follow, the government's motion is granted.

I. Background

For several months, the Court has been engaged in on-going hearings called for by the CIPA. Earlier, the Court conducted a series of hearings over seven days to address the "use, relevance, and admissibility" of classified information pursuant to Section 6(a) of the CIPA. During those hearings, the Court solely relied upon the Federal Rules of Evidence in ruling on the relevance, use, and admissibility of the classified information the defendant seeks to introduce in support of his defense. United States v. Libby, 453 F.Supp.2d 35, 36 (D.D.C.2006). Then, on November 15, 2006, this Court issued a Memorandum Opinion memorializing its Section 6(a) rulings. United States v. Libby, 467 F.Supp.2d 1, 2006 WL 3461482 (D.D.C. Nov.15, 2006) (redacted version). Having concluded the hearings conducted pursuant to Section 6(a), and in response to the government's motion pursuant to Section 6(c) of the CIPA, the Court then commenced a series of hearings to determine whether non-classified information and documents can be properly substituted for the classified information this Court deemed relevant and admissible during the Section 6(a) proceedings. The Section 6(c) hearings commenced on November 7, 2006, and concluded on November 29, 2006. Throughout the course of these, proceedings, and in response to this Court's preliminary rulings, the government provided revised versions of proposed substitutions. The government's final submission of proposed substitutions was provided to the Court on December 4, 2006.³ It is these final substitutions, some of which have been revised at various times throughout the CIPA Section 6(c) proceedings, that are the subject of this opinion.

II. Discussion

A. The Section 6(c) Standard

The CIPA establishes the procedures for providing pretrial notification of a defendant's intent to use classified information at his trial and the process for determining exactly what information the defendant will be permitted to introduce as evidence. United States v. Fernandez, 913 F.2d 148, 151 (4th Cir.1990). It was enacted to "permit the government to ascertain the potential damage to national security of proceeding with a given prosecution before trial." S.Rep. No. 96-823, at 1 (1980), reprinted in 1980 U.S.C.C.A.N. 4294, 4294. This Court has devoted substantial time and paper discussing the various statutory provisions of the CIPA and the standards that this Court will employ when presented with motions covered by these provisions. See, e.g., United States v. Libby, 429 F.Supp.2d 18 (D.D.C.2006), amended by 429 F.Supp.2d 46 (D.D.C.2006) (discussing Section 4 of the CIPA); United States v. Libby, 453 F.Supp.2d 35 (D.D.C.2006) (discussing Section 6(a) of the CIPA). And now the Court turns to Section 6(c) of the CIPA.

Section 6(c) of the CIPA provides:

(1) Upon any determination by the court authorizing the disclosure of specific classified information under the procedures established by this section, the United States may move that, in lieu of the disclosure of such specific classified information, the court order —

(A) the substitution for such classified information of a statement admitting relevant facts that the specific classified information would tend to prove; or

(B) the substitution for such classified information of a summary of the specific classified information.

The court shall grant such a motion of the United States if it finds that the statement or summary will provide the defendant with substantially the same ability to make his defense as would disclosure of the specific classified information. The court shall hold a hearing on any motion under this section. Any such hearing shall be held in camera at the request of the Attorney General.

18 U.S.C App. III, 6(c) (emphasis added). Although this provision, on its face, allows this Court to replace relevant classified information with either "a statement admitting relevant facts that the specific classified information would tend to prove" or "a summary of the specific classified information," so long as the substitute "will provide the defendant with substantially the same ability to make his defense," Id., Congress made clear that this provision "rests on the presumption that the defendant should not stand in a worse position, because of the fact that classified information is involved, than he would without this act." S.Rep. No. 96-823, at 9 (1980), reprinted in 1980 U.S.C.C.A.N. 4294, 4302; see United States v. Moussaoui, 382 F.3d 453, 477 (4th Cir.2004); Fernandez, 913 F.2d at 154. However, Congress' intention was not to require that the evidence the Court permits a defendant to present in support of his defense be the "precise, concrete equival[ent]." H.R. Conf. Rep. No. 96-1436, at 12 (1980), reprinted in 1980 U.S.C.C.A.N. 4397, 4310. In fact, as just noted, the plain language of the statute provides two methods through which substitutions can be made — a statement admitting relevant facts or a summary of the classified information. 18 U.S.C.App. III, § 6(c). Thus, the Court is not limited in the manner in which it permits substitutions, so long as the approved substitutions "provide the defendant with substantially the same ability to make his defense." 18 U.S.C.App. III, § 6(c); see, e.g., United States v. Collins, 603 F.Supp. 301, 304 (S.D.Fla.1985) ("It does not follow, however, that because the evidence is relevant that it is necessarily admissible in the form offered."); see also United States v. Wilson, 750 F.2d 7, 9 (2d Cir.1984). Moreover, "[t]he fact that insignificant tactical advantages could accrue to the defendant by the use of the specific classified information should not preclude the court from ordering alternative disclosure," H.R. Conf. Rep. No. 96-1436, at 12-13 (1980), reprinted in 1980 U.S.C.C.A.N. 4307, 4310-11; see United States v. Juan, 776 F.2d 256, 259 (11th Cir.1985) ("The court may find that s 6(c) alternative proposed by the government will provide the defendant with his defense, even though the defendant might rather threaten his prosecutor with the disclosure of more detail."). Thus, the statute contemplates that the Court will permit a substitution even if it is not the exact means through which the defendant prefers to introduce the evidence. However, the statutory language makes explicitly clear that to be adequate, the government's proposed substitutions must "provide the defendant with substantially the same ability to make his defense as would disclosure of the specific classified information." 18 U.S.C.App. III, § 6(c).

While the government must, of course, assert a national security interest to employ the protections of the CIPA, under Section 6(c) the assertion affords it only the opportunity to propose redactions or substitutions for the classified information the defendant desires to use. 18 U.S.C.App. III, § 6(c)(2) ("[t]he United States may... submit to the court an affidavit... certifying that disclosure of classified information would cause identifiable damage to the national security of the United States"). After that, the assertion of a national security interest drops out of the Section 6(c) picture and the Court must focus exclusively on whether the redacted or substituted version of the classified information the government proposes the defendant use provides the defendant with substantially the same defense that he desires to present. Accordingly, when making an assessment under CIPA Section 6(c), the Court should not take into account or balance the government's national security interest in protecting the classified information from disclosure. Rather, the statute makes clear that the Court's only inquiry is whether the proposed substitutions provide the defendant substantially the same ability to present his defense. 18 U.S.C.App. III, § 6(c).⁴

There is no existing written case authority describing the lens though which a Court should look to determine whether a proposed substitution "will provide the defendant with substantially the same ability to make his defense as would disclosure of the specific classified information." 18 U.S.C.App. III, § 6(c). Despite this absence of authority, the Court is not completely without guidance. It is axiomatic that a court should interpret a statute in a manner so "as to avoid constitutional questions." See Fed. Election Comm'n v. Akins, 524 U.S. 11, 32, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998) ("[t]he doctrine of constitutional doubt.. . counsels us to interpret statutes, if possible, in such fashion as to avoid grave constitutional questions."); see also United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408, 29 S.Ct. 527, 53 L.Ed. 836 (1909). Accordingly, when construing Section 6(c) of the CIPA,...