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United States v. Libby

September 21, 2006

UNITED STATES OF AMERICA,
v.
I. LEWIS LIBBY, DEFENDANT.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION AND ORDER

On September 27, 2006, this Court will commence hearings pursuant to Section 6(a) of the Classified Information Procedures Act ("CIPA"), 18 U.S.C. App. III, § 6(a) (2000), to address the "use, relevance, and admissibility" at trial of certain classified documents, information, and testimony.*fn1 After reviewing the papers submitted by the parties, it is apparent that they not only disagree on the evidentiary value of the information at issue, but also have divergent views on the standard the Court should employ in determining whether use of the information should be precluded during the trial.*fn2 Thus, before these hearings commence, the Court must address the standard it will employ during those hearings in addressing the admissibility question. As discussed in greater detail below, it is the Court's conclusion that the Federal Rules of Evidence and the restrictions they impose control whether information subject to CIPA proceedings is admissible during a trial.

I. The CIPA

The CIPA establishes the procedures for pretrial determinations of the disclosure and the admissibility at trial of classified information in federal criminal proceedings.*fn3 See United States v. Fernandez, 913 F.2d 148, 151 (4th Cir. 1999). The statute was designed to reconcile, on the one hand, a criminal defendant's right to obtain prior to trial classified information and introduce such material at trial, with, on the other hand, the government's duty to protect from disclosure sensitive information that could compromise national security. United States v. Rezaq, 134 F.3d 1121, 1142 (D.C. Cir. 1998). As such, the CIPA creates pretrial, trial, and appellate procedures for federal criminal cases where there is a possibility that classified information will be disclosed through a defendant's defense. These pretrial procedures cover the manner in which pretrial conferences are to be conducted, the issuance of protective orders, and the regulation of the discovery of classified information sought by criminal defendants. 18 U.S.C. App. III, §§ 2-4. In addition, the CIPA sets forth a structure for determining the admissibility of classified information at trial, which involves a four step process. 18 U.S.C App. III, §§ 5-6.

First, Section 5(a) of the CIPA requires a defendant to file a notice describing the classified information he "reasonably expects to disclose or cause the disclosures of" at trial. 18 U.S.C. App. III, § 5(a) ("Section 5 notice"). If the defendant fails to comply with this requirement, the Court, in its discretion, may preclude the use of any classified information not part of the defendant's Section 5 notice. Id. at § 5(b). Second, at the government's request, the Court must hold a pretrial hearing to address the "use, relevance, or admissibility" of the classified information identified in the defendant's Section 5 notice. Id. at § 6(a).*fn4 Following this hearing, the Court is required to "set forth in writing the basis for its determination" as to each piece of classified information that was at issue during the hearing. Id. Third, if the Court determines that certain classified information can be used during trial, the government may move (1) to replace the classified portions of the information at issue with a statement admitting the relevant facts that the information would tend to prove, or (2) to substitute a summary of the information. Id. at § 6(c)(1)(A) - (B). "The court shall grant such a motion . . . 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." Id. at § 6(c)(1). And finally, if the Court denies the government's proposed admission or substitution, the government has two options. The government can file an "affidavit of the Attorney General objecting to [the] disclosure of the classified information at issue," which will then require the dismissal of the indictment except in cases where "the [C]court determines that the interests of justice would not be served by dismissal of the indictment." Id. at § 6(e). Alternatively, the government can file an immediate interlocutory appeal. Id. at § 7.

Here, the defendant has filed his final Section 5 notice. In response, the government has moved for a hearing pursuant to Section 6(a) and it has filed its Section 6(b) notice identifying those items of classified information that are at issue. Accordingly, the Court, in the upcoming hearings, must now make pretrial "determinations concerning the use, relevance, or admissibility of [the] classified information" identified by the government. 18 U.S.C. App. III, § 6(a). Only after these determinations are made does the Court need to address the question of redactions and substitutions.

II. Section 6(a) of the CIPA

As noted above, the parties disagree sharply on the standard the Court should employ in the Section 6(a) proceeding. The defendant argues that the Court must simply apply the Federal Rules of Evidence, Def.'s Mem. at 5-6, while the government contends that the Court should engage in a three-step inquiry, Gov't's Opp'n at 5-15. Specifically, the government opines that when it asserts a classified information privilege,*fn5 a classified document (or testimony based on a classified document) should be precluded from use at trial unless the Court determines (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. Id. The Court cannot accept the government's position for the following reasons.

"The CIPA's fundamental purpose is to protect and restrict the discovery of classified information in a way that does not impair the defendant's right to a fair trial. It is essentially a procedural tool that requires a court to rule on the relevance of classified information before it may be introduced." United States v. Dumeisi, 424 F.3d 566, 578 (7th Cir. 2005) (emphasis added) (internal quotation marks, brackets, and citations omitted); see also Fernandez, 913 F.2d at 154; United States v. Smith, 780 F.2d 1102, 1106 (4th Cir. 1985) (en banc). When the CIPA was enacted, Congress made clear that the statute did not alter the rules governing the admissibility of evidence during a trial. Senate Rep. No. 96-823, 96th Cong., 2d Sess. (1980), p. 8; House Conf. R. No. 96-1436, 96th Cong. 2d. Sess., (1980), p. 12 ("As noted in the reports to accompany[,] . . . [n]othing in the conference substitute is intended to change the existing standards for determining relevance and admissibility."); see Smith, 780 F.2d at 1106; United States v. Johnson, 139 F.3d 1359, 1365 (11th Cir. 1998) ("CIPA has no substantive impact on the admissibility or relevance of probative evidence."); United States v. Wilson, 732 F.2d 404, 412 (5th Cir. 1984) ("CIPA does not undertake to create new law governing admissibility.") (internal quotation marks and citation omitted). However, "[w]hile [the] CIPA creates no new rule of evidence regarding admissibility, the procedures it mandates protect a government privilege in classified information." Yunis v. United States, 867 F.2d 617, 623 (D.C. Cir. 1989).

Under Section 6(a), the Court is charged with making a pretrial "determination concerning the use, relevance, or admissibility" of the classified information identified in the defendant's Section 5 notice. 18 U.S.C. App. III, § 6(a). It is an unremarkable proposition of statutory interpretation that it is a court's "duty to give effect, if possible, to every clause and word of a statute." Duncan v. Walker, 533 U.S. 167, 174 (2001) (internal quotation marks and citation omitted). Thus, during a Section 6(a) proceeding, the Court must make determinations not only as to the relevance of classified information, but also as to its use and admissibility at trial. 18 U.S.C. App. III, § 6(a). The fact that these are separate inquiries cannot be surprising since, for example, it is well settled that not all relevant evidence is admissible during a trial. See Fed. R. Evid. 403 ("[A]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice."); Fed. R. Evid. 802 ("Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court.").

Applying the framework enunciated in Section 6(a), the Court must first determine whether the information identified by the defendant is relevant. Specifically, the Court must assess whether the information "[has] any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401 (defining "relevant evidence"). Following the relevance determination, the Court must then examine whether the information is admissible at trial, and if so, whether its use should be limited.*fn6 This inquiry is also governed by the Federal Rules of Evidence, which imposes restrictions on the use of relevant evidence. See, e.g., Fed. R. Evid. 403, 404(b), 501.

Here, the government not only challenges the relevance of the information proffered by the defendant, but also asserts that its introduction should be excluded at trial because the government has a classified information privilege. Gov't's Opp'n at 7. The government contends that when such a privilege is raised, the Court's inquiry must go beyond examining the relevance of the information. Specifically, the government argues that after a national security privilege has been invoked, the Court must look further than relevance and determine whether introduction of the information would be at least "helpful to the defense." Id. at 8 (citing Yunis, 867 F.2d at 622). If this hurdle is satisfied, the government posits that the Court must then balance the need to protect the government's information against the defendant's interests in disclosure. Id. (citing Smith, 780 F.2d at 1110). According to the government, this further inquiry is used to determine the "use" and "admissibility" at trial of the information in question. Id. at 14. While recognizing that the District of Columbia Circuit has not mandated such a balancing test, the government notes that other courts have. Id. at 9 n. 5.

Before addressing the legal arguments raised by the government in support of its three-step inquiry, which in practice sets a standard higher than mere relevance and admissibility assessments, it is important to discuss briefly the history of the CIPA. During the congressional hearings which preceded the enactment of the CIPA, the Department of Justice ("DOJ") requested that the CIPA include a heightened standard for the admissibility of classified information. Specifically, the DOJ sought language that would make evidence admissible only if it was "relevant and material." Graymail S. 182, Hearing Before Subcommittee on Criminal Justice of Senate Judiciary Committee, 96th Cong., 2d Sess. (1980), pp. 3, 18. Under this standard, the Court would be required to balance the probative worth of the evidence against the potential harms to national security. Id. at pp. 9, 22. This standard was rejected by Congress, which stated unambiguously that "nothing in the [CIPA] is intended to change the existing standards for determining relevance and admissibility." Smith, 780 F.2d at 1106 (citing House Conference Report No. 96-1436, 96th Cong., (1980), p. 12.).

Here, the government is advocating a standard similar to the one rejected by Congress. Not only does the government's argument lack support in the legislative history, but with one exception, see Smith, 780 F.2d at1106-1110, its position is not supported by the existing case law. While there can be no question that the government has a legitimate privilege in protecting documents and information concerning national security, see, e.g., C. & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948); Totten v. United States, 92 U.S. 105, 106-07 (1875), the extent of that protection in the context of a criminal prosecution is embodied in the procedures set forth in the CIPA, Yunis, 867 F.2d at 623 ("the procedures [the CIPA] mandates protect [the] government['s] privilege in classified information."); see United States v. Mejia, 448 F.3d 436, 455 (D.C. Cir. 2006) (quoting Yunis, 867 F.2d at 623). And the cases in this Circuit that have applied ...


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