Ex-Cheney aide seeks use of secret evidence

updated 4:46 p.m. ET Jan. 23, 2006

WASHINGTON - Lawyers for a former top aide to Vice President Dick Cheney on Monday made their first request to use classified evidence at his trial, launching a highly secretive court process that could bog down the case.

In the filings made under seal in federal court, lawyers for I. Lewis “Scooter” Libby put the judge and prosecutors on notice that they want a jury to hear evidence the government now says is classified.

Their action puts the Libby case on a dual track — one public, the other secret — that often can delay criminal cases from going to trial.

Libby, Cheney’s former chief of staff, was indicted last year on charges that he lied to FBI agents and a federal grand jury about how he learned CIA operative Valerie Plame’s identity and when he subsequently told reporters.

Plame’s identity was revealed in July 2003 by columnist Robert Novak after her husband, former U.S. Ambassador Joseph Wilson, accused the Bush administration of twisting intelligence about Iraq’s efforts to buy uranium “yellowcake” in Niger. The year before, the CIA had sent Wilson to Africa to determine the accuracy of the uranium reports.

Although the specifics of Monday’s filing remain secret, Libby’s defense team hinted in a court document last Friday that they will want to disclose to a jury the nature of Plame’s work as a CIA operative.

Libby’s lawyers said Plame’s now-classified duties are among the “significant disagreements” they have with special prosecutor Patrick Fitzgerald, an issue they believe is “material” to the defense’s case.

Fights over classified information repeatedly delayed the case against acknowledged al-Qaida member Zacarias Moussaoui, the only person charged in the United States in connection with the Sept. 11, 2001, terrorist attacks. Moussaoui, who has pleaded guilty to conspiracy charges, faces a trial next month in Alexandria, Va., where a jury will decide whether he should be executed.

Judge will decide
In Libby’s case, U.S. District Judge Reggie B. Walton will decide what will be presented to a jury and in what form. In such cases, compromises can be worked out where secret information is presented in summaries to a jury.

In 1980, Congress passed the Classified Information Procedures Act, setting out a process for judges to weigh a defendant’s right to a fair trial against the need to keep evidence secret to protect national security.

The legislation also was designed to keep defendants from threatening to reveal government secrets in order to force prosecutors to drop cases.

So far, Fitzgerald has turned over 850 pages of classified information to Libby’s defense team. In a filing last week, he said he is working on getting four government agencies involved in the investigation to consent to declassify additional information.

That is no easy task, Fitzgerald said, and will take time.

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