|
Too dense for my brain, but found the following interesting- beginning on page 14:
The government has agreed to provide the defendant with documents obtained from
the Office of the Vice President, and to seek a ruling from the Court with respect to any such
documents that it determines should not be produced. In addition, the government has
provided relevant documents obtained from sources other than the Office of the Vice
President that reflect communications between government officials and others regarding
Ms. Wilson’s employment.
The defendant now seeks access to a wide array of intelligence-related information,
much of which has no relation to the crimes of which he is charged. Specifically, the
defendant seeks: (a) for the period May 6, 2003 through March 24, 2004, his own notes and
all documents provided to the defendant in connection with his morning intelligence briefing,
including the President’s Daily Brief, and additional materials provided to the defendant and
the Vice President; (b) for the period May 6, 2003 through March 24, 2004, all documents
relating to inquiries made during or in connection with the defendant’s morning intelligence
briefing, and all documents provided to the defendant as a result of those inquiries; (c) any
assessment done of the damage (if any) caused by the disclosure of Valerie Wilson’s
employment; and (d) all documents related to Ms. Wilson’s employment, and the
classification of Ms. Wilson’s employment status. The defendant argues that the government
is required to produce all requested documents in the possession of the Special Counsel, as
well as other federal agencies including, at a minimum, the CIA, DOJ, FBI, and the Office
of the Vice President.
Whether by design or otherwise, compliance with Libby’s discovery demands for
extraneous materials would collide directly with the need to protect sensitive national
security information and information protected by presidential communications and
deliberative process privileges. It is respectfully submitted that in addressing these discovery
requests, this Court be mindful that the incentive for defendants facing trial to engage in
“greymail” to seek to derail a trial is so well recognized that Congress passed the Classified
Information Procedures Act statute (“CIPA”) to deal with it.
A. The Prosecution is Not Obligated to Provide Discovery of Documents Held
by Agencies Which Have Not Participated in the Investigation and Over
Which it Has No Control.
Contrary to the defendant’s suggestion, the government has declined to comply with
the defendant’s demands for additional discovery primarily on the ground that the documents
demanded by the defendant go far beyond what could reasonably be held to be “material to
the preparation of the defendant’s defense,” rather than on the ground that such documents
are not in our possession. Focusing on whether particular agencies are “aligned” with the
prosecution as the primary issue to be determined obscures the point that the documents the
defendant seeks are irrelevant and implicate serious national security and privilege issues.
The prosecution should not be burdened by an obligation to search the offices of various
government agencies (other than the Department of Justice, including the FBI) for
documents, most of which are classified, which would not be required to be disclosed if they
were in the prosecution team’s possession. The Special Counsel’s attempts to expedite the
litigation in this case by disclosing responsive materials in its possession, though not
obligated to do so, should not be understood as an indication that the government has drawn
the line on discovery based solely or principally upon the location of the documents
requested.
That being said, the defendant’s claim that the government’s discovery obligations
extend to all Executive Branch agencies is inconsistent with the law and unreasonable.
Contrary to the defendant’s contention, an agency’s status as a witness does not automatically
align that agency with the prosecution, or give the prosecution knowledge of, access to, or
control over that agency’s records. This is particularly true with respect to an agency such
as the Central Intelligence Agency, the records of which implicate national security and are
otherwise highly confidential and sensitive. As a matter of fact, Valerie Plame Wilson is not
the “alleged victim” of the charged crimes (perjury, obstruction, and false statements), which
victimize society at large, and thus the CIA is not the victim’s employer. Nor did that agency
participate in the grand jury investigation that led to the indictment in this case. Accordingly,
neither the CIA nor its employees “act[] on the government’s behalf in the case.”
Strickler v. Greene, 527 U.S. 263, 281 (1999). Nor can it be fairly said that the prosecution
has knowledge of or access to documents in the possession of the CIA.
The defendant’s claim that the Office of the Vice President is closely aligned with
prosecution also lacks merit. The fact that the President of the United States directed that all
government employees cooperate with the investigation did not, and could not, give the
prosecution knowledge of, access to, or control over all the records of the Office of the Vice
President, many or most of which implicate national security and are otherwise highly
confidential and sensitive. Nor did it render the Office of the Vice President “closely aligned
with the prosecution” in connection with an investigation which resulted in the prosecution
of the Office of the Vice President’s former second in command. See United States v.
Brooks, 966 F.2d 1500, 1503 (D.C. Cir. 1992). The Office of the Vice President cooperated
by providing responsive documents, not by conducting the investigation jointly.
Accordingly, while the government does not object to playing a role in facilitating the
production of documents in the possession of other agencies that are held by the Court to be
discoverable, the prosecution’s discovery obligations cannot properly be said to extend to
being held accountable for producing documents in the possession of other agencies of which
it has no knowledge or access, and which it does not control.
|
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(1000+ posts)
Send PM |
Profile |
Ignore
