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Portions of CIA leak decision can be unsealed

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NEWS MEDIA UPDATE   ·   WASHINGTON, D.C.   ·   Secret Courts   ·   Dec. 8, 2005

Portions of CIA leak decision can be unsealed

  • Responding to a motion by Dow Jones Inc. to unseal portions of the judicial decision ordering two reporters to testify before a grand jury, the special counsel in the CIA leak investigation said information in the decision is no longer classified and that he does not object to the unsealing of certain portions.

Dec. 8, 2005  ·   Patrick Fitzgerald, the special counsel in the CIA leak investigation, signaled in a court filing that he does not object to unsealing specific portions of the redacted eight pages of the Feb. 15 decision ordering Time Magazine’s Matthew Cooper and Judith Miller, formerly of The New York Times, to testify before a grand jury. He also said that information on the eight pages is no longer classified.

However, in his motion filed before the U.S. Court of Appeals for the District of Columbia on Dec. 2, Fitzgerald said that only material on the redacted pages that deals with the indictment of I. Lewis “Scooter” Libby, Vice President Dick Cheney’s chief of staff, should be released. The remaining information should remain shrouded to protect the “integrity of the ongoing investigation” and the grand jury, he said.

Fitzgerald was responding to a motion filed by Dow Jones Inc, publisher of The Wall Street Journal, on Nov. 2 asking the court to unseal eight pages of Judge David S. Tatel’s February opinion. In it, Tatel wrote in great detail “to explain his conclusion that the information sought by the subpoenas was ‘both critical and unobtainable from any other source,’ and that, thus, any conceivable privilege was overcome,” according to Fitzgerald’s motion.

Dow Jones’ motion for unsealing was joined by The Reporters Committee for Freedom of the Press, Bloomberg News and USA Today.

“First and foremost, it should be a really extraordinary case where a judicial decision remains under seal,” Stuart Karle, general counsel for The Wall Street Journal, said in an interview. “As a practical matter, justice should be public. In this particular case, the redacted pages are likely to provide a picture of exactly what the special counsel’s investigation focused on at that point in time, before the reporters testified.”

When the decision was written, Fitzgerald was attempting to discover who told Cooper and Miller about Valerie Plame’s identity as a CIA agent. The journalists claimed they were protected by the reporter’s privilege, but the court found that, in this case, Fitzgerald had overcome that privilege. However, the judicial reasoning for why the privilege had been overcome is not known because of the eight-page redaction.

After the grand jury disbanded and Fitzgerald charged Libby with perjury and obstruction of justice, Dow Jones thought the need for secrecy in the opinion no longer applied.

“Ultimately, reporters were compelled to testify when they felt that they shouldn’t have,” Karle said. “It’s important to find out what exactly justified what happened here.”

In the Dec. 2 court filing, Fitzgerald wrote that “secrecy is not necessary with respect to certain portions of the redacted pages that directly relate to Mr. Libby, whose status as a subject of the grand jury investigation became publicly known through the return of the indictment . . . .”

Since the information had already been turned over the public and, according to Fitzgerald, was no longer classified, it would appear that any information regarding Libby’s indictment in the decision should be unsealed.

However, Fitzgerald still wants to protect other portions of the decision from the public because “secrecy continues to be necessary with respect to the remainder of the redacted pages, in order to protect from public embarrassment or ridicule individuals whose status as grand jury witnesses or subjects has not been publicly disclosed, as well as to protect the integrity of the ongoing investigation,” Fitzgerald wrote.

Although Fitzgerald indicted Libby, his investigation has continued and he convened a new grand jury on Nov. 18. Since then, he has asked Time reporter Viveca Novak to testify about her conversations with Robert D. Luskin, the lawyer for presidential aide Karl Rove, and presented evidence before the grand jury. Novak is not related to Bob Novak, who first reported Plame’s identity in 2003.

(In re Grand Jury Subpoenas, Judith Miller; Media counsel: Theodore J. Boutros, Gibson, Dunn & Crutcher; Stuart Karle, Dow Jones & Co., New York, N.Y.)CM

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