hmm could it be a binder on … The Source.

Very good recap, emptywheel. [I gave my own long run-down in Saturday night’s Late Nite thread at FDL, focusing more on the Judge’s handling of this, so won’t repeat it here.]

For Binder #11: the Section 6(a) appeal may well fill one up [not to mention a possible 6(c) appeal to follow]…

Libby’s lawyer doesn’t understand ordinary people… the folks who will be sitting on the jury.

Telling them that Libby was distracted by the â€very importantâ€(tm) configuration of the CPA or the crisis of an international insult or the arrival of another bin Ladin tape isn’t going to sway them. Dealing with such â€very importantâ€(tm) stuff was his job. He also had a staff trained to deal with preparing papers and screening phone calls and whatever else assistants to assistants do.

If he argues that he was facing an appointment with the proctologist the day after testifying â€and my mind went blank with fearâ€, somebody on the jury might mutter that he was still full of shit, but anybody could be forgetful while worrying, even somebody â€very importantâ€(tm).

By pegging a defense to the distant dramas of international incidents and double-super-secret classified documents, those human beings aren’t going to care why he lied.

But for the moment, can I just observe that Scooter Libby has better standards of note-taking than just about any journalist involved in this case?

Heh. That would be funny except that it’s true. Judy…. JUUUUUUUU-DEEEEEEEEEE, do you hear the federal prison calling? Everyone say it with me: â€Conspiracty to obstruct justice…â€

â€I was too busy to remember when I outed a spy†at the SAME time I WASN’T TOO BUSY to GOSSIP with journalists and have BREAKFAST with Judy Miller at the St. Regis HOTEL!

â€â€¦ and have BREAKFAST with Judy Miller at the St. Regis HOTEL! for two hours.â€

And a long phone conversation with her at the end of the same week.

This is the part of things that makes me think Libby is angling for a pardon. Every part of your analysis of why one won’t happen makes sense, EW, but is he really going to set himself up to be asked questions about this on the stand?

Even more delicious is the prospect of Big Dick being asked what he knew about Scooter’s chats with Judy.

There’s one other curious thing about the Walton ruling, which might just be misstating Libby’s case. He says,

the defendant anticipates introducing classified information … to demonstrate that to the extent that he was involved in an attempt to respond to Ambassador Joseph Wilson’s findings regarding Iraq’s relationship with Niger, such efforts were for the legitimate purpose of addrssing the merits of those findings, and had nothing to do with disclosing Ambassador Wilson’s wife’s–Valerie Plame Wilson’s–affiliation with the [CIA].

Two things about this. Walton, at least, comes close to saying â€addressing the merits of those findings,†does not include mention of Plame’s CIA affiliation. Don’t know whether Libby would totally endorse this stance, but if so, it would pretty much refute the favorite wingnut talking point, that a trip to Niger really is a â€boondoggle†and Joe Wilson was very lucky he had a wife who could send him to such places.

I guess Libby doesn’t want to look like a stupid rabid wingnut in front of 12 intelligent residents of DC.

THe other thing I found intriguing about Walton’s phrasing is the emphasis on the â€findings,†which suggests they’re going to emphasize my favorite prop in this story, the trip report on Wilson’s trip.

I think a â€Leak†binder would be helpful, to catalogue all the illegal leaks of classified info from the WH to the media before Deadeye got his â€authorization†to do this (which I understand to be vague/shaky).

Poor Scooter. He takes better notes than I ever could, yet he forgot to write down–anywhere–that he talked to Tim Russert, who told him Wilson’s wife worked at the CIA.

I understand how a guy who is managing the entire US government needs to take notes (in great detail). But dangit! what a terrible TERRIBLE time to be without a pad and pencil…right when a news reporter is revealing CLASSIFIED information to Scoots! â€Hang on, Tim. You’re saying she what? Really? At the CIA? Gosh, on WMD…you don’t say? You don’t mind if I jot this down, I’d like to check into this myself? Well, damn! My pencil just broke!â€

The Baby Jesus must have been crying that day.

I must state, particularly in light of very recent rulings about corporation’s being required to keep their employees email, blackberry records, phone records, and even copies of backups, and memory cards, etc., for later possible Federal perusual, that many times you just don’t put down some notes or work. This of course is only the most important or dangerous stuff, that you will remember anyway. Perhaps only 1 detail of a 1,000, or 10,000.

I sure don’t. And then there are the â€private notes.†Not left at the office, on any machine, or â€memory only.â€
[[And a word to the wise, any machine may make a copy of anything that you write or type on that machine if it has the right software.]]

Someplaces, everything has a copy made, except handwritten, and then there are policies on those.

At times a â€good memory course†is an asset even if you consider you have a good memory. Or â€reminders.†In ancient times, they put special knots on a cord, or carved a staff, etc., to reinforce memories.

A little more perspective on the relative quantities of classified information contained in different categories of the 6(a) ruling’s material is provided in Libby’s CIPA Section 6(f) reply filing on Monday:

â€Through the narratives in his Consolidated CIPA Section 5 Notice, Mr. Libby provided the government with the overwhelming majority of the classified information in Topics 2 and 3 (enhancing the United States defenses for homeland security and nuclear proliferation by Pakistani scientist A.Q. Khan and efforts by the United States to stop his activities) and with much of the classified information in Topic 1 (threatened attacks on America and American interests by Al Qaeda, Hezbollah, and other terrorist groups). The bulk of the classified information that the Court has found relevant and admissible on the other [six] topics appears either in the narratives or in Mr. Libby’s notes, which he created and which the government could not even interpret without the defense transliterations. And the defense provided the government with the classified information in defense counsel’s [6(a) hearings] [testimony] proffers, which link the classified information in Mr. Libby’s CIPA Section 5 narratives and documents to his theory of defense.â€

[Emphasis added]

Seems as though this creature called a â€narrative†is some new CIPA-specific hybrid cooked up by Libby and his graymail attorney Cline to confound the CIPA process and the Judge, and to make Libby’s â€memory defense†seem like more of an integral defense against the charges Libby faces than would otherwise be the case. It also seems to be doing the trick, with regard to the graymail dismissal threat, as the government has been objecting strenuously to the amount of classified detail included in these Libby-manufactured narratives, so far without much effect on Judge Walton. And judging by the filing, also on Monday, of the government’s second Section 6(c)(2) affidavit, the Judge is going to end up having to make a decision and choose between the IC’s national security concerns about disclosure of at least some of the 6(a)-ruled-relevant evidence, and another â€slanted†ruling for Libby which would presumably lead straight to a second [6(c)] appeal by the government.

[To John L. above: note that the ’disappeared’ Opinion from 11/13 was connected to the Judge’s first denial of a 6(c) substitution motion from the government – an Opinion which Walton later vacated (thus the disappearance). We’re presumably now awaiting the Judge’s revised, final Opinion and ruling on the government’s revised 6(c) motion, to which Monday’s new affidavit is addressed.]

I don’t know Jeff.

There are many counter arguments that can be made about why something is not there, that some might consider to be obviously missing by evil design.

For example, I am sure there is a lot of stuff in Libby’s notes about 9/11 but an absense of anything linking him to a plot with the Saudis to do the dastardly deed doesn’t mean he was involved in the plot.

It is hard to prove by â€weight of absense†anything! The argument can be turned on its head too easily. Not to say that if the argument is impressive, that a jury won’t be swayed.

But Fitz is not very impressive to me. He seems a bulldog.
Not a Clarence Darrow, or William Jennings Bryan and certainly not the real but legendary Daniel Webster.

â€even the damned may salute the eloquence of Mr. Websterâ€

Not Fitz.

pow wow

I see you’re right, Fitzgerald submitted an identical notice regarding CIPA 6(c)(2) in November. So it does look like this is just part of the next round of proposed substitutions.

mainsailset

I’ve shared this several times on this blog. But a friend of mine, of the female persuasion, once fished against Dick in the Jackson Hole one-fly–a chichi fishing contest in Dick’s backyard.

Said friend fished the pants off the future VP.

That she kicked his ass makes me happy. That he impressed her enough in the boat to turn her into a Republican does not.

Only rarely do I visit that site, pow wow; I appreciate the update. I got my information from a fast paced academic website that follows many issues important in Ew’s studies, there.

In reviewing the 4 mystery dates, I continue to see parallels with signing statements, as several of Ew’s listed dates preceed by one day the publication of the statement; see for example, there. I would expect Addington was the principal designer researcher but Libby could have been more engaged in writing those documents during the June 2003- March 2004 timeframe of Ew’s listed mystery dates on which subsequently now Libby’s memory is a total blank for the day prior to publication of each signing statement.

In scanning some of the detainee cases’ timelines and milestones at the supreme court, there are several habeas cases which definitely would have been important neoCon transition points which occurred within or closely following that 9-month timeframe. It is important because the 2003-2004 years were a time of transition, when some detainees were held in miserable condition for years without reprieve incommunicado and the congress had done little to address the thorny problem, while the armed conflicts had morphed into new shape and clearly the matter of the detainees was another prominent flaw in the work of the administration. A threshold was approaching beyond which courts were going to engage the apparent lapse, as habeas is at the very foundation of legal structure; and the international community was having problems with the protraction of the process as prosecuted by the administration.

Also inside that nebulous circle on the calendar were other occurrences which certainly would have the vice president’s office working overtime. Sy Hersh’s NYorker article appeared on the website in the third week of October 2003, and on the newsstands the end of October 2003. And in December 2003 the DC Circuit court’s ruling protecting Cheney’s energy taskforce attendance roster from publication was reversed when the supreme court certified the appeal for hearing; Cheney was afforded cover by the Supreme Court, as it happened later, but I would expect that December 16 cert at Scotus caused Cheney and Libby some worry.

As for the precision of notetaking headers, that practice is common, and required; at least so it was in our government work when I was involved in communications with those kind of VIPs. You need to jog the memory; and small details like where, when, how and the like help visualize the setting for the meetings; when you are busy, the minutiae are useful years later for precisely that kind of memory art. People who do that for a living function on that level. Besides the note pad, I would expect there is a vest pocket personal calendar book, even more skeletal in specificity but with all the key topics and decision trees; it depends on how Libby works, but I would expect him to rely on pen and paper and layered notebooks.
The prospect someone who is a professional in that activity could forget the decision to muddy the waters by using orchestrated revelation of a spouse spy identity in the press as a countermeasure seems disingenuous. It was a messy and turbulent strategem, and risky for Libby. I would expect part of his doublechecking after the InstaReDeClassification approval was recognition the alibi better be perfectly airtight.

Jeff,

you are correct when you say that probably never really happened.
In case you have forgotten the source of that line though:

â€The Devil And Daniel Websterâ€

http://tarlton.law.utexas.edu/…../devil.htm

â€The defense rests,†said Dan’l Webster, and stood there like a mountain. His ears were still ringing with his speech, and he didn’t hear any thing else till he heard judge Hathorne say,
â€The jury will retire to consider its verdict.â€

Walter Butler rose in his place and his face had a dark, gay pride on it.

â€The jury has considered its verdict,†he said, and looked the stranger [[the devil]] full in the eye. â€We find for the defendant, Jabez Stone.â€

With that, the smile left the stranger’s face, but Walter Butler did not flinch.

[55]

â€Perhaps ’tis not strictly in accordance with the evidence,†he said, â€but even the damned may salute the eloquence of Mr. Webster.â€

With that, the long crow of a rooster split the gray morning sky, and judge and jury were gone from the room like a puff of smoke and as if they had never been there.â€

I think that hopes of Mr Cheney hurting himself on the stand, IF he ever takes it, are stretching. Unlike Mr Libby in the past, he will have full knowledge of the location of the game pieces on the board, and will not be thinking that he has the luxury of people not testifying.

He may even use Hillary’s line: â€I don’t recall.†From the famous Rush Limbaugh song. But I expect he will do even better.

((Now all of the above is going along with the assumption in this thread that Mr Libby is guilty of something.))

Right, Jeff [the first affidavit was filed on 11/7, to be exact, the day of the first Section 6(c) hearing, when the government’s original Motion of substitutions was simultaneously filed, and denied by the Judge (orally) at the hearing that day (per the 11/13 vacated Opinion)].

Monday’s second 6(c)(2) affidavit filing is reinforced by the docketing today of â€Government’s Supplemental Motion Pursuant To CIPA Section 6(c) For Substitutions In Lieu of Disclosure Of Classified Information†(under seal).

I’m assuming that this is the final round for 6(c) – because presumably after (I believe) four 6(c) hearings, the positions have been clearly laid out and the government has taken its best shot at â€going back to the drawing board†since it was given that ruling on 11/7, in an effort to review the 6(a) evidence again more closely and disclose as much as the Intelligence Community feels it possibly can in this case. So I assume today’s filing (faxed over to the Court, it appears, from the DOJ’s Criminal Division this morning) is the government’s best shot at a set of substitutions that will pass muster with Judge Walton. It’s possible Libby may already have seen (or heard last Wednesday) the gist of this supplemental motion, but I would expect to see another response from him before the Judge rules on it.

[Clearly the government has been revising its denied Motion before now, because Libby has responded to revisions that weren’t actually docketed (as Libby apparently did with the first Motion, actually, too). So for that reason as well, I believe that the government waited to officially file both the new affidavit and the new supplemental Motion, until all outstanding matters that could be addresssed, were addressed. I don’t imagine, for one thing, that they were too eager for another flat denial, this time perhaps with prejudice, from the Judge, for a too-hasty and not-yet-best-shot 6(c) refiling…]

pow wow

Thanks. That sounds roughly right to me, though it’s easy for me to imagine that they could go back for another round of substitutions on a limited number of items, even if by and large this round is successful. In his last opinion, Walton seemed to express confidence that the government could get on the right track, which is promising from their point of view; but again, they could succeed overall but still have some discrete things they have to try again on. My impression from looking a little at the Fernandez case in Iran-Contra is that there can be multiple rounds of this stuff – although I remain a little confused by all the appellate action involved in that one, and the interference from the AG and so on.

I assume that we’ll hear pretty quickly from Walton, which is what happened last time and which presumably everyone wants in light of the approaching trial date.

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