Will Scooter Libby, a neocon who helped orchestrate the war in Iraq, end up graymailing the US government?
That seems to be one of the strategies being considered by the lawyers defending Dick Cheney’s former chief of staff, who was indicted by special counsel Patrick Fitzgerald in the CIA leak case for lying to FBI investigators and grand jurors to cover up his (and possibly Cheney’s) participation in the outing of CIA officer Valerie Wilson (née Plame).
Graymail is a defense gambit not available to most criminal suspects. But years ago defense attorneys representing clients connected to the national security establishment–say, a former CIA employee gone bad–figured out a way to squeeze the government in order to win the case: Claim you need access to loads of classified information in order to mount a defense–more than might truly be necessary. Of course, the government is going to put up a fight. It may release some information–but not everything a thorough defense attorney will say is needed. The goal is to get the government to say no to the informant. Then the defense attorney can attempt to convince the judge that without access to this material he or she cannot put up an adequate defense. If the lawyer succeeds, it’s case dismissed. In such situations, the defendant is essentially saying, Prosecute me and I’ll blow whatever government secrets I can. Isn’t that the act of a patriot?
Judges tend to dislike graymailers and shoot them down whenever possible. Still, Libby seems close to making this sort of push. Last week, his attorneys asked for access to ten months’ worth of the President’s Daily Brief, the highly classified report the President receives each morning from the CIA. (The Bush White House is ferociously possessive about PDBs and has refused to hand them over to Congressional investigations.) Libby’s lawyers say that Libby “was immersed throughout the relevant period in urgent and sensitive matters, some literally matters of life and death” and that because of his involvement in “the constant rush of more pressing matters, any errors he made in his FBI interviews or grand jury testimony” were unintentional slips. Libby, a lawyer himself, has to realize that (a) Fitzgerald does not have it within his power to provide the requested PDBs and (b) the overly secretive, presidential-prerogative-is-us White House in which Libby served will never cough up nearly a year of PDBs. But in a display of chutzpah, Libby’s attorneys said that Fitzgerald should obtain copies of the PDB from the CIA and Cheney’s office and then turn them over to Libby’s lawyers.
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Libby’s defense team also requested information proving that Valerie Wilson was a classified CIA employee (asserting that the classified nature of her employment at the CIA has not yet been established), and they demanded any CIA damage assessment of the Plame leak. A damage assessment is not the sort of material the agency would supply without a titanic fight. A damage assessment would presumably cover operations and activities the CIA does not want damaged any further by additional disclosure.