Ex-Cheney Aide Handed Initial Victory

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By MATT APUZZO
The Associated Press
Thursday, September 21, 2006; 7:12 PM

WASHINGTON -- A ruling by a federal judge Thursday could make it easier for Vice President Dick Cheney's former chief of staff to use classified documents in his trial in the CIA leak case.

I. Lewis Libby, who is accused of lying to investigators about conversations he had regarding Valerie Plame's CIA employment, wants to use a wide array of classified records as part of his defense at his trial early next year.

Prosecutors have said Libby is trying to torpedo the case by demanding documents that are too sensitive to be released at trial. It's a tactic known as "graymail" and the goal is to get a case dismissed.

Libby has obtained sensitive documents including Cheney's intelligence briefings during the spring and summer of 2003. At the time, Plame's CIA status was leaked to the press after her husband accused the Bush administration of twisting prewar intelligence to exaggerate the Iraqi threat.

Libby's attorneys say the briefing memos will show that Libby had more pressing issues on his mind at the time and honestly didn't remember his conversations with reporters.

It isn't publicly known what other documents _ and possibly classified testimony from witnesses _ are at issue in the case.

Special Prosecutor Patrick Fitzgerald proposed a strict legal test that would have forced Libby to prove that his need for the records outweighed the government's need to keep them secret.

U.S. District Judge Reggie Walton rejected the prosecutor's proposal. When considering what classified information should be admissible at trial in Libby's defense, Walton said he'll apply the standard rules of evidence, which generally provide defendants documents that are relevant and helpful.

"Typically, the defendant tries to get as much classified information as possible to try to put the government in a box," said Joseph J. Aronica, a former federal prosecutor who has tried several cases involving classified documents.

Walton referred to that dilemma in his ruling. He said the government must weigh the importance of prosecuting the case against the need to keep state secrets.

If secrecy is more important, the government can withhold any documents it chooses, Walton said, even though that might mean the case is dismissed.

There are ways around the problem of classified information. Federal law offers judges the option of blacking out sensitive portions of classified documents or relying on unclassified summaries of what is contained in classified materials.

However, experts in the executive branch of government ultimately will have to determine whether evidence that Walton deems essential in order for Libby to get a fair trial can be declassified. If it cannot be, then Fitzgerald will be unable to try the case.


© 2006 The Associated Press

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