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Portions of redacted opinion in CIA leak case released

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NEWS MEDIA UPDATE   ·   WASHINGTON, D.C.   ·   Secret Courts   ·   Feb. 7, 2006

Portions of redacted opinion in CIA leak case released

  • Sparked by a motion from Dow Jones Inc., a federal appeals court unsealed significant portions of eight pages which had been redacted from an earlier opinion rejecting two journalists’ argument that they were protected by a reporter’s privilege.

Feb. 7, 2006  ·   Significant sections of a previously redacted judicial opinion were released Friday after an appellate court ruled that certain information about grand jury testimony in the CIA leak investigation is no longer secret.

Dow Jones Inc. had filed a motion asking the U.S. Court of Appeals in Washington, D.C., to release eight redacted pages from Judge David S. Tatel’s concurring opinion in a February 2005 court ruling that then-New York Times reporter Judith Miller and Time magazine’s Matt Cooper must testify before a grand jury that was investigating who leaked the identity of CIA operative Valerie Plame to the press.

Judge Tatel, in one of three concurring opinions written by the three-judge panel, found that there is a common law privilege but that special prosecutor Patrick Fitzgerald had overcome it. Tatel explained how Miller’s testimony was critical to the investigation, how the grand jury had exhausted all other available resources, and that the public interest favored compelling her testimony. In doing so, eight pages of his decision were sealed from the public to preserve grand jury secrecy and to protect classified information.

The same three judges replied to Dow Jones’ motion Friday and allowed large sections of Tatel’s decision to be released, stating, in a decision written by the court as a whole, “we are satisfied here that there is no longer any need to keep significant portions of the eight pages under seal. Libby’s indictment, now part of the public record, reveals some grand jury matters, and we see little purpose in protecting the secrecy of grand jury proceedings that are no longer secret.”

“We’ve very pleased that the court released the material that it did,” said Theodore Boutrous, Jr., who represented Dow Jones in its motion. “The court recognized that grand jury secrecy is not unyielding.”

The court, however, did not reveal all of the eight redacted pages because their “publication at this juncture could identify witnesses, reveal the substance of their testimony, and — worse still — damage the reputation of individuals who may never be charged with crimes. That the special counsel’s investigation is ongoing only heightens the need for maintaining grand jury secrecy, for the special counsel is entitled to conduct his investigation out of the public eye and with the full cooperation of witnesses who have no fear their role in the investigation will lightly be disclosed.”

The court did leave release the order without prejudice to Dow Jones’ right to move to unseal the remaining redacted sections at a later date.

“This decision is extremely helpful for obtaining more access to grand juries,” Boutrous said. “It’s happening one step at a time, but each decision that allow for broader access can be put together and we’ll have a doctrine that allows for greater access than ever before.”

The redacted portions of the eight pages deal mainly with grand jury testimony of I. Lewis “Scooter” Libby, the former chief of staff to Vice President Dick Cheney. The grand jury indicted Libby on perjury charges. In Friday’s ruling, Tatel found that Miller’s testimony could help “settle the matter” of whether Libby committed perjury.

“If Libby mentioned Plame during the July 8 meeting — and Miller’s responses to the documentary subpoena suggest she has notes from that conversation . . . — then Libby’s version of events would be demonstrably false,” Tatel wrote. “Even if he first mentioned Plame on July 12, as he claims, inconsistencies between his recollection and Miller’s could reinforce suspicions of perjury.”

(In re: Grand Jury Subpoena, Judith Miller; Theodore J. Boutrous, Jr., counsel for Dow Jones, Gibson, Dunn & Crutcher, Los Angeles, Calif.)CM

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© 2006 The Reporters Committee for Freedom of the Press   ·   Return to: RCFP Home; News Page

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