United States v. Libby

MEMORANDUM OPINION 1

On September 27, 2006, this Court commenced a series of hearings pursuant to Section 6(a) of the Classified Information Procedures Act (“CIPA”), 18 U.S.C.App. Ill, § 6(a) (2000), 2 to address the “use, relevance, and admissibility” during the trial of this matter of certain classified documents and information the defendant desires to use as part of his defense. 3 In advance of those hearings, the Court detailed in a September 21, 2006, Memorandum Opinion and Order, the standard the Court must employ in resolving whether certain classified information should be precluded from trial pursuant to Section 6(a) of the CIPA. United States v. Libby, 453 F.Supp.2d 35, 36 (D.D.C.2006) (concluding that under Section 6(a) only “the Federal Rules of Evidence and the restrictions they impose control whether information subject to CIPA proceedings is admissible during a trial.”). 4 Consistent with *4 the standard enunciated in the September 21, 2006 Opinion, the Court issued a number of rulings from the bench during the Section 6(a) CIPA hearings resolving contested issues concerning the “use, relevance, and admissibility” of the classified documents and information the defendant desires to use. This opinion memorializes those rulings as required by Section 6(a) of the CIPA. 18 U.S.CApp. Ill, § 6(a) (“the court shall set forth in writing the basis for its [use, relevance, and admissibility] determination.”). 5

I. Background

This Court has, on several occasions, set forth the facts of this case in published opinions. See, e.g., United States v. Libby, 432 F.Supp.2d 81, 82-83 (D.D.C.2006); United States v. Libby, 432 F.Supp.2d 26, 28-29 (D.D.C.2006); United States v. Libby, 429 F.Supp.2d 27, 28-29 (D.D.C.2006); United States v. Libby, 429 F.Supp.2d 1, 4 (D.D.C.2006). Accordingly, the Court need not do so again in this opinion. However, it is necessary to discuss the classified information the defendant desires to disclose or will cause to be disclosed during his trial. As discussed more fully below, over the course of the Section 6(a) proceedings, the classified information subject to the Section 6(a) proceedings has evolved from a mountainous volume of documents and other classified information to a much more modest quantity.

The Defendant’s Consolidated CIPA § 5 Notice, 18 U.S.CApp. Ill, § 5, was filed on August 15, 2006. This notice identified 412 documents and nine narrative summaries which contain classified information that the defendant reasonably expects to disclose or cause the disclosure of during the trial. 6 Def.’s Notice at 1. As indicated by the defendant, he “may introduce the listed document itself into evidence, or present testimony concerning the classified information contained in the document, or both.” Id. According to the defendant, these documents and the narrative sum *5 maries are relevant to two aspects of his defense. First, the vast majority of the documents would be used to establish the foundation for the defendant’s anticipated defense that any misstatements he made when speaking with the Special Agents of the Federal Bureau of Investigation (“FBI”) or testifying before the grand jury were the result of confusion or faulty memory, not an intent to willfully misrepresent the truth. Def.’s Mem. at 8-14. In support of this theory of his defense, the defendant anticipates introducing classified information related to nine topic areas, which detail the work he will posit commanded his time and attention during the time period he purports is relevant to this case. Id. at 8-10. And the defendant will contend that these topics consumed the focus of his attention and had significantly greater importance to him than the conversations he allegedly had with various news reporters that form the bases for the offenses he is charged with committing. Id. at 10. Accordingly, the defendant will assert that to the extent he made inaccurate statements to the FBI agents or to the grand jury concerning the substance of conversations he had with various news reporters, such inaccuracies were inadvertent, as they concerned conversations that were “relatively unimportant to him.” Id. And second, the defendant anticipates introducing classified information, primarily through his notes, in an attempt to demonstrate that to the extent 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 addressing the merits of those findings, and had nothing to do with disclosing Ambassador Wilson’s wife’s — Valerie Píame Wilson’s — affiliation with the Central Intelligence Agency (“CIA”). Id. at 14-15.

The initial Section 6(a) hearings, while not resolving at that time every dispute on the admissibility of the subject classified information, was extraordinarily helpful in framing what use, relevance, and admissibility determinations needed to be resolved by the Court. The benefit that resulted from the initial hearings was the defendant’s modification of his CIPA Section 5 notice clarifying what classified. information was in fact at issue. 7 Moreover, before the Section 6(a) hearings commenced, and during the hearings themselves, the amount of classified information at issue was reduced substantially. Specifically, on September 6, 2006, and again on September 26, 2006, the government filed a notice pursuant to Section 6(b) of the CIPA identifying various documents listed in the defendant’s Section 5 notice that are not classified. In addition, over the course of the hearings, it became apparent, as to the documents related to the memory aspect of the defense, that the defendant is not seeking to introduce the actual classified information contained in each and every document identified in his Section 5 notice. Rather, the defendant identified a substantial number of documents only for the purposes of establishing that an event occurred or that classified information was provided to him, without any intention of revealing during the trial the actual substance of the events or the information contained in the documents. 8 And, as to *6 those documents or the information therein he anticipates seeking to actually introduce, it became apparent that in many instances the defendant does not desire to introduce all of the information contained in every document. Thus, as a i*esult of these developments, the amount of classified information the defendant seeks to disclose has been reduced substantially.

In addition to the topic summaries in the defendant’s Section 5 CIPA notice, there are 100 documents containing classified information, 9 which the defendant seeks to introduce to establish the foundation for his memory defense. And there are twenty-nine documents containing classified information, 10 which the defendant seeks to introduce to establish that he was not engaged in an effort to reveal the identity of Ambassador Joseph Wilson’s wife as a CIA employee, but rather he was merely attempting to legitimately rebut the merits of Ambassador Wilson’s assertions. As these documents (along with the narrative summaries contained in the Section 5 notice) contain all of the classified information that remains at issue, this Court’s ruling is thus limited to this information. 11 The Court will discuss each group of documents in turn.

II. Discussion

As already noted, this Court previously concluded that when ruling on the “use, relevance, and admissibility” of classified information pursuant to Section 6(a) of the CIPA, the Court must solely employ the standard rules of evidence that govern any other type of evidence in federal court. Libby, 453 F.Supp.2d at 36. In opposition to the defendant’s arguments regarding the use, relevance, and admissibility of the classified information identified in his Section 5 CIPA notice, the government advances three arguments, which were also recurring themes during the Section 6(a) hearings. First, the government contends that the documents relate to time periods not relevant to the defendant’s memory defense. Gov’t’s Opp’n at 23-26. Second, *7 the government argues that the classified information contained in the topic summaries and the documents themselves contain a level of detail that is not relevant. Id. at 26-28. And finally, the defendant maintains that much of the classified information should be excluded under Federal Rules of Evidence 401 (“Definition of Relevant Evidence”) and 403 (“Exclusion of Relevant Evidence on the Grounds of Prejudice, Confusion, or Waste of Time”). Id. at 32-34. The government’s most recent filing details, document-by-document, the government’s specific objections. See generally Gov’t’s Obj. The Court will address each of these arguments in turn. However, before turning to the documents themselves, it is helpful to first set forth a few general principles in response to the objections raised by the government and the defendant during the Section 6(a) proceedings.

First, it is important to briefly discuss one recurring debate that occurred throughout the Section 6(a) proceedings— the line between Federal Rules of Evidence 401 and 403 on the one hand, and substitutions under Section 6(c) of the CIPA on the other hand. During the Section 6(a) proceedings, the government objected to much of the information identified by the defendant in his Section 5 notice because it claimed that such evidence was too detailed and that such levels of detail made much of the evidence irrelevant under- Rule 401. In addition, the government opined that any probative value such details have is far outweighed by the unfair prejudice and confusion that would result from the evidence being presented to the jury, thus making it inadmissible under Rule 403. In response, the defendant argued that the government’s concern about the level of detail was more properly addressed in the later substitution proceedings under Section 6(c) of the CIPA.

It is undisputed that this Court has a duty to engage in a Rule 403 balancing to determine whether otherwise relevant evidence should be excluded at trial. Courts therefore frequently employ Rule 403 to exclude irrelevant, confusing, and misleading evidence. See United States v. Anderson, 872 F.2d 1508, 1518 (11th Cir. 1989); see also United States v. Wilson, 586 F.Supp. 1011 (S.D.N.Y.1983), aff'd, 750 F.2d 7 (2d Cir.1984). And although Section 6(c) provides the procedures through which the Court (and the parties) will engage in the process of substitutions and redactions of classified information that is deemed relevant and admissible, Courts have recognized that the balancing under Rule 403 can include a “balancing] between relevance and prejudice and the alternatives available for the substitution of less prejudicial proof.” United States v. Long, 574 F.2d 761, 770 (3d Cir.1978) (Adams, J., concurring); see United States v. Lebovitz, 669 F.2d 894, 902 (3d Cir.1982) (Adams, J., concurring). As the Eighth Circuit recognized in United States v. Sewell, 457 F.3d 841, 844 (8th Cir.2006), “[i]n weighing [the Rule 403] elements, the district court should discount the probative value of the disputed evidence if an eviden-tiary alternative has equal or greater probative value and poses a lower risk of unfair prejudice.” Id. (citing United States v. Becht, 267 F.3d 767, 773 (8th Cir.2001)). Thus, a Court making a Rule 403 determination can examine whether “less prejudicial proof’ with equal probative value can be substituted to eradicate any unfair prejudice or confusion. Cf. Long, 574 F.2d at 770. Accordingly, where this Court has concluded that the introduction of certain terms that are part of the classified proof would create unfair prejudice or confusion, it has required re-dactions or substitutions of less prejudicial terms. However, in making these redac- *8 tions or substitutions under Rule 403, the Court was not concerned with whether they altered the classification status of the document or information. Rather, the Court was only concerned with removing the confusing or prejudicial language. Only after the Section 6(a) hearings were completed, has the Court concerned itself with substitutions and redactions designed to address the government’s concerns about disclosing the classified nature of a document or information. 12

Second, before engaging in an extensive document-by-document analysis, it was important to assess the time periods that are critically relevant to this prosecution. This assessment weighed heavily on what classified information contained in the documents should be excluded or to what degree the extent of the classified information the defendant seeks to admit should be limited. As discussed more fully below, the Court employed, what is in effect, a “sliding scale.” On one end of the scale is the classified information that relates to events that allegedly consumed the defendant’s time and attention during critical dates as alleged in the indictment. On the other end of the scale is the classified information that relates to events that allegedly consumed the defendant’s time and attention at other times not specifically referenced in the indictment. The classified information that reflects what the defendant was confronting during those critical dates was deemed far more probative than the information confronting the defendant during those other times. This demarcation caused the Court to conclude that the level of detail the defendant would be permitted to introduce at trial would be generally controlled by whether the classified documents or information related to one of those critical dates. If so, for the jury to get an appreciation of what exactly was purportedly consuming the defendant’s time and attention during these specific periods, it is the Court’s view that the defendant must be permitted to testify with some level of detail about those events or introduce documents with the same level of detail. On the other hand, except for several other specific instances, documents relating to events not occurring on or within close proximity of these key dates are much less probative, and thus, there is simply no need for the jury to know with the same degree of detail about those events. In other words, while the defendant will be permitted to provide detailed testimony about information relating to events that fall on or within close proximity of critical dates in the indictment, he will be precluded from testifying altogether or his testimony will be limited as to classified information relating to events falling outside these critical dates.

Admittedly, some of the information contained in the documents and narrative summaries related to these critical dates is highly sensitive. Nonetheless, these are the activities and events that the defendant will contend were consuming his time and attention during the dates that are identified in the indictment. Thus, in order to put on this defense, the defendant *9 must be afforded the opportunity to show the jury that his focus was consumed by this information is credible. And it is of no moment that the government does not anticipate challenging the defendant’s assertions that he was consumed with important matters because the government will no doubt challenge the relative weight the jury should accord to this information as compared to the focus he gave to Ambassador Wilson and the information he had provided about his trip to Niger. 13

To determine which dates are significant to the offenses charged in the indictment, the Court must look to the indictment itself. The first date of any significance in the indictment is May 6, 2003, the date on which New York Times columnist Nichols Kristof published his column in The New York Times challenging the accuracy of the President’s State of the Union address, during which the President stated that “[t]he British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.” Indictment at 3, ¶ 3. And the last date in the indictment of significance is March 24, 2004, the date of the defendant’s last grand jury appearance. Id. at 11, ¶ 30. The period of time falling within these dates largely set the parameters for the period relevant both to the prosecution and the defense of this case, as it is the events falling within these dates that form the predicate for the charges that have been lodged against the defendant. However, this Court cannot conclude that the detail in every document, the detail of every conversation, and the detail of every task the defendant performed during this entire eleven month period is relevant or relevant to the same degree to his memory defense. Rather, there are several discrete points in time during this eleven month period when significant conversations occurred, such as the dates the defendant spoke with the various news reporters, had conversations with various administration officials, spoke with the FBI agents, and testified before the grand jury, that are of critical importance to this prosecution. It is the information and work that consumed the defendant during these key dates, and the days immediately surrounding these key dates, that are most relevant and probative. In other words, the items that allegedly consumed his time and attention during these key periods are the tasks that most likely would have caused the defendant to allegedly misremember the conversations at issue. Moreover, several other distinct events, due to the immediacy or gravity of the information, could also be construed by the jury to have impacted the accuracy of the defendant’s memory. Therefore, the defendant will be permitted to disclose the details of this information and these events as well.

The indictment alleges that the defendant participated in conversations beginning on or around June 9, 2003, with administration officials concerning Ambassador Joseph Wilson and his trip to Niger, Indictment at 4, ¶ 5, and that these conversations continued throughout that week, id. at 4-5, ¶¶ 6 — 11. It is clear that the government will use these conversations to establish that the defendant had knowledge of Valerie Píame Wilson, and knew of her affiliation with the CIA. Accordingly, there can be no question that what otherwise allegedly consumed the defendant’s time and attention during this week — June *10 9 through 14, 2003 — is relevant and extremely probative to the prosecution and defense of this action. In addition, the defendant had various conversations pertinent to this prosecution during the week of July 6 through 12, 2003, including the conversations with the various news reporters, which form the predicate for the charges that have been filed against the defendant. Again, this week is critical to the case, and the events occurring during this week are relevant and highly probative. Finally, there are other significant dates discussed in the indictment that are also relevant, including the date of the defendant’s conversation with Judith Miller (June 23, 2003), his conversations with the FBI agents (October 14, 2003 and November 26, 2003) and the dates he testified before the grand jury (March 5, 2004 and March 24, 2004). Indictment at 6, ¶ 14, id. at 9, ¶ 26, id. at 11, ¶ 30. What the defendant was doing and the information provided to him on these dates, in addition to the day before and the day after, are also relevant and highly probative of whether he is culpable for committing the charged offenses. Accordingly, documents and information that fall within all of the dates discussed above are clearly relevant to establish what matters the defendant was allegedly focusing on at those times. And the defendant will therefore be permitted to introduce documentary proof or testify with some degree of detail, if he so chooses to testify, about the events and activities he was engaged in during these relevant time periods.

On the other side of the scale, however, are those documents and information which relate to the defendant’s activities occurring outside these clearly critical time periods. Although this Court cannot say with absolute certainty that no other documents or information related to events falling outside these time periods are totally irrelevant, their probative value is diminished in assessing whether the defendant innocently misremembered the conversations that form the basis for the charged offenses. In fact, there is a “danger of unfair prejudice, confusion of the issues, or misleading the jury,” in providing the jury details of the defendant’s activities falling outside the critical time periods. Specifically, permitting the defendant to testify as to the details of what consumed his time outside the critical time periods discussed above would likely confuse the jury concerning what events actually allegedly consumed the defendant’s attention at the times that he had the conversations that form the basis for this prosecution. Accordingly, while the defendant will be permitted to testify generally about the matters that consumed his time and attention during those periods outside of the dates identified in the indictment, permitting detailed descriptions of events occurring during such periods will be excluded pursuant to Federal Rule of Evidence 403.

While the vast majority of classified documents and information will fall squarely into one of the two categories described above, the Court acknowledges that there are events occurring outside of the critical time periods that may have impacted the defendant’s memory and perception of the events at issue in the case. For example, this Court recognizes that simply because the defendant received an intelligence briefing on a given day, does not mean that he was only consumed with the information contained in that briefing on that day. Thus, for example, the Court will permit the defendant to testify in detail about events that occurred on the day before and the day after the critical day itself. Moreover, the Court recognizes that particularly significant events occurring during the period of time between the defendant’s conversations with the various *11 news reporters and his conversations with the FBI agents and his testimony before the grand jury could impact his memory and perception of those conversations. Accordingly, the defendant has proffered a limited number of events, supported by information contained in classified documents, which he believes fall into this category. Specifically, during the Section 6(a) proceedings, the defendant proffered four dates on which events occurred that were of such significance that he believes could have caused him to misremember his conversations with various news reporters and administration officials. According to the defendant, such events occurred on or around July 29, 2003; August, 20, 2003; November 21, 2003; and late-December, 2003. 14 In addition to these dates, the defendant opines that there were a few other discrete pieces of classified information that he was exposed to outside of the time frame encompassing the critical dates that likely impacted his memory. 15 Considering the significance of these events and the plausibility that they would have had overwhelming impact on the focus of his attention and therefore impacted his memory of earlier events even though they occurred a considerable time after the events he was being asked to remember, the Court will permit the defendant to testify about these limited number of events. Moreover, the defendant will be permitted to testify at the level of detail proffered by his attorney during the Section 6(a) proceedings, which is equivalent to the level of detail he is permitted to provide regarding those events that occurred during the critical times designated in the indictment. 16

Finally, before turning to the classified documents and information itself, it is helpful to discuss whether the actual documents will be admissible, as opposed to simply testimony concerning the information contained in the documents. As indicated during the Section 6(a) proceedings, many, if not most, of the documents themselves are unlikely to be admitted as evidence during the trial for several reasons. First, the documents would be cumulative of the testimony provided by the defendant. And second, it would appear at this time that the information contained in many of the documents will pose substantial hearsay problems. However, the Court will have to defer issuing definitive rulings in this regard until an issue of admissibility arises. At that time, the Court will be able to consider the question in context and assess whether there may be some basis for the actual admission of the documents, e.g., past recollection recorded. The Court will now turn to the classified documents and information itself.

A. Documents and Information Related to the “Memory Defense”

As noted earlier, the defendant seeks to introduce documents and the information *12 contained therein relating to nine different subject areas, which he contends occupied his time and focus of attention during the relevant time periods. These nine topic areas are: (1) threatened attacks on American and American interests by A1 Qaeda, Hezbollah, and other terrorist groups; (2) enhancing the United States defenses for Homeland Security; (3) nuclear proliferation by Pakistani scientist A.Q. Khan and efforts by the United States to stop his activities; (4) the development of nuclear weapons by North Korea; (5) Iran’s development of nuclear weapons, its arrest and potential harboring of A1 Qaeda members, and its involvement in Iraq; (6) the proper size and role of the Iraqi military and security forces in the months following the fall of Saddam Hussein’s regime and the proper composition of the governing entity in Iraq; (7) the Israel-Palestine relationship, including the emergence of Mahmond Abbas (Abu Mazen) as an alternative to Yasser Arafat and the threat that Hamas posed to peace and security; (8) a tense diplomatic crisis that arose during the first half of July 2003 resulting from the arrest of Turkish soldiers in Iraq by the United States military; and (9) the unrest in Liberia in June and July 2003, culminating in the ousting of President Charles Taylor from office in early July 2003, the danger to the United States Embassy and its occupants in Monrovia, Liberia, and the United States’ role in protecting civilians caught in the middle of the conflict in Liberia. See Def s Notice at 15-45.

The classified documents and information identified by the defendant as relevant to his memory defense that fall within these nine categories can be divided into three groups. The first group includes the [redacted] material provided to the defendant, [redacted] 17 The second group contains the classified information in the nine topic narratives contained in the defendant’s Section 5 CIPA notice. And finally, the documents themselves, which comprise primarily the defendant’s notes. The Court will address each set of documents separately. 18

1. [redacted] 19

The defendant seeks to introduce portions of information [redacted] The information he seeks to introduce references those activities that the defendant contends were consuming his time and attention. As this Court has discussed in earlier opinions, this case is about whether the defendant provided false statements to Special Agents of the FBI and false testimony to the grand jury. See Libby, 429 F.Supp.2d at 15. Thus, it is the state of mind of the defendant that is at issue (and, *13 to a lesser extent, the state of mind of the media witnesses and various other government witnesses). However, [redacted] 20 themselves are not relevant, as they do not show what the defendant believed was important or what matter the defendant devoted his efforts to on a given day. [redacted] The exception, of course, are those inquiries made by the defendant, [redacted] in response to reviewing these documents. [redacted] However, the defense has affirmatively stated that the defendant intends to testify on his own behalf. It will therefore be the defendant’s testimony about what he was focused on and that his workday was consumed by the information [redacted] that makes the classified information contained in these documents relevant under Rule 401.

While the classified information [redacted] along with the defendant’s testimony that will be based on the content of these documents is relevant, this conclusion does not end the Court’s inquiry. The Court must further determine whether there are any other evidentiary grounds that merit the exclusion of otherwise relevant classified evidence the defendant desires to present at trial, either in whole or in part. Rule 403 provides such a predicate. For instance, the defendant anticipates testifying that the intelligence information [redacted] Moreover, he asserts that he focused to a greater extent on intelligence that [redacted] than he did on information that [redacted] Accordingly, the defendant posits that it was entirely reasonable that his time and attention was consumed by the information contained in these documents. The Court agrees.

While the substance of the information [redacted] is relevant, the Court must conclude that testimony or documents linking the information to the fact that it is contained in such highly classified documents is inadmissible because the probative value of the source of this information is far outweighed by the danger that the linkage will potentially cause unfair prejudice and distract the jury from focusing on the issues it is being asked to decide. Permitting the defendant to testify that he received specific intelligence information [redacted] standing alone, has no probative value, [redacted] 21 Not only would such disclosures be irrelevant, but it would cause the jury to give undue consideration to a matter that has no bearing on the issues that are germane to this case. Accordingly, while the defendant can testify about the information [redacted] 22 subject to the other limitations set forth in this opinion, he may not testify that the information originated [redacted] Moreover, although the defendant is precluded from stating that the intelligence information he received originated [redacted] he is welcome to state that as the National Security Advisor for the Vice President, he believed that the intelligence information he was provided [redacted] was the best available information on the subject. Accordingly, he can testify that he took such information very seriously. The restriction imposed by this opinion excludes [redacted] but still provides the defendant a full opportunity to testify about the substance of the information.

In addition [redacted] there are portions of these documents themselves that must be excluded because their probative value is substantially outweighed by both (1) the confusion introduction of the information would create for the jury and (2) the undue *14 waste of time that would result from the introduction of the evidence.

[redacted] While these documents at times do discuss groups and individuals that are well-known, such as Hezbollah or al Qaeda, often these documents discuss individuals and groups whose names are not commonly known by the general public (and therefore the individuals who will comprise the jury), [redacted] References to this latter category of names will be excluded under Rule 403 for a variety of reasons. First, the probative value of identifying these groups is minimal, at best, since their names will in all likelihood not be known by the jurors. Moreover, introducing the names of multiple terrorist groups, terrorist, and sources of information will undoubtedly confound the jury, as it is likely that its members will focus on trying to assess where these groups and individuals fit into the various threats that were being made against the United States and our allies, rather than simply focusing on the fact that the defendant was exposed to what the government will acknowledge was information of significant importance to the defendant. Furthermore, introducing the names of these various terrorist groups, terrorists, and sources and methods of intelligence gathering will unduly waste time. For the jurors to appreciate why the defendant would be concerned about these unfamiliar names, he would have to explain who these groups and individuals are and why the United States, and the defendant in particular, had interests in their activities. And this is unnecessary in light of the government’s decision not to challenge their importance. Accordingly, the Court concludes pursuant to Rule 403 that references to the organizations and individuals listed in the appendix of this opinion must be redacted [redacted] and no references can be made to them during the trial. 23 However, the defendant is welcome to suggest generic substitutes for the names of these groups and individuals if doing so will aid his defense. On the other hand, because the same problems do not arise in connection with names that are well known, 24 the defendant will be permitted to use them as part of his defense.

In addition to the redactions discussed above, any testimony concerning classified information [redacted] shall also be limited by the date restrictions discussed earlier. Unless [redacted] falls within the time frames identified above as relevant, the defendant (or any other witness) may not testify to the details contained within the documents. Rather, references to this classified information must be identified as nothing more than “dots” on the defendant’s Power Point presentation, or in some similar non-descriptive manner. Accordingly, for the forgoing reasons, the defendant will be permitted to introduce the substance of the classified information [redacted] as limited above.

2. The Topic Summaries Contained in the Defendant’s Consolidated Section 5 Notice

The second category of classified information at issue is the information contained in the nine narrative topic summaries submitted by the defendant. These topic summaries, as amended during the *15 Section 6(a) proceedings, provide a substantial amount of detail as to what the defendant alleges was consuming his time and attention from May 6, 2003 to May 24, 2004. It is important to note at the outset that the government does not object to the defendant discussing, in general terms, the nine topic areas. However, the government has set forth in detail its objections to the narrative summaries, which largely challenge the detail contained in the narrative summaries and the amount of classified information the defendant seeks to introduce. See generally Gov’t’s Obj[redacted] this Court must conclude, subject to the date restrictions identified earlier, that the following information must be redacted from the narrative summaries under Rule 403 because the information is irrelevant or its introduction would create “unfair prejudice, confus[e] ... the issues, or mislead[ ] the jury, or [cause] ... undue delay, waste of time, or [result in the] needless presentation of cumulative evidence.” Fed.R.Evid. 403. The Court will discuss each topic area in turn and discuss whether any portion of the narrative summaries should be excluded. 25

(а) Topic I: Threatened Attacks on America and American Interests by Al Qaeda, Hezbollah, and Other Terrorist Groups.

Within this topic, this Court must conclude, [redacted] that references to certain terrorist groups, individuals, and locations should be excluded under Rule 403, as this information is likely to confuse the jury and waste time. Specifically, the following information will be excluded from this narrative under Rule 403: [redacted] are names not commonly known, and thus testimony identifying them by name has no probative value. In fact, for the jury to understand why the defendant’s attention would have been focused on [redacted] he would have to testify in some detail about who this terrorist group and individual are and why they were of interest to him. And this is unnecessary because the government will not suggest that these names would not have been of interest to the defendant. Thus, any possible minimal probative value that would be derived from having these names presented to the jury is far outweighed by the waste of time and diversion of the jury’s attention away from the actual issues in this case. Thus, use of these names will be excluded under Rule 403.

The narrative also discusses information concerning the belief that [redacted] Def.’s Notice at 16. Identifying [redacted] in this sentence and throughout this narrative summary must be excluded because this Court believes that such testimony will likely cause confusion of the issues and needlessly draw the jury’s attention away from the actual controversies in this case — whether the defendant made false statements to the FBI agents and committed perjury when he testified before the grand jury. Namely, such testimony would likely lead the jury to unduly focus on the foreign affairs of the country, which is totally irrelevant to this case. Moreover, to the extent the defendant desires to elicit as part of this topic what others were told, i.e., “the President and his advisers,” this information will be excluded because it *16 is simply irrelevant to the defendant’s state of mind. 26 Other than these few instances where the Court concludes that classified information must be excluded, the remainder of this narrative summary is both relevant and admissible, subject to any limitations imposed pursuant to Section 6(c) of the CIPA. 27

(b) Topic 2: Enhancing the United States Defenses for Homeland Security

Approximately half of the defendant’s narrative on this topic is unclassified; therefore, this Court need not address the use, relevance, and admissibility of the unclassified portions at this time. As to the remaining portion of the narrative, the only section that this Court must conclude should be excluded is on page twenty-three. There, the defendant seeks to testify that [redacted] 28 While the gist of this narrative is largely relevant and admissible, the Court concludes that the statement, [redacted] must be excluded from trial. This result is called for because the Court concludes that revealing [redacted] will be a distraction about a matter that the jury simply need not concern itself with. The defendant will be adequately served by the jury being made aware that he was concerned about the shortage. Anything more is irrelevant. Accordingly, that part of the sentence will be excluded. 29

(c) Topic 3: Nuclear Proliferation by Pakistani Scientist A.Q. Khan and Efforts by the United States to Stop his Activities

The narrative portion of this topic is also largely relevant. However, there are two small portions of this narrative that must be excluded. First, [redacted] the defendant notes [redacted] While the fact that [redacted] is relevant, the rest of the statement, [redacted] adds nothing to the defendant’s defense and is therefore not relevant, [redacted] however, is simply irrelevant to the defendant’s memory defense. In addition, just as this Court has excluded [redacted] it will also exclude [redacted] included in this topic summary as *17 well. Accordingly, references to [redacted] will be excluded.

(d) Topic k: The Development of Nuclear Weapons by North Korea

With the modification to this narrative agreed to by the defendant, [redacted] this Court cannot conclude any other portion of this narrative should be excluded under either Rules 401 or 403.

(e) Topic 5: Iran’s Development of Nuclear Weapons, its Arrest and Potential Harboring ofAl Qaeda Members, and its Involvement in Iraq.

For the reasons discussed earlier, other than removing the names of the terrorist organization [redacted] the Court cannot conclude that any other portion of this narrative should be excluded under either Rule 401 or 403.

(f) Topic 6: The Proper Size and Roles of the Iraqi Military and Security Forces in the Months Following the Fall of Saddam Hussein and the Proper Composition of the Governing Entity in Iraq.

As to this topic, there are several statements in the narrative that will be excluded pursuant to Rules 401 and 403. In addition to removing [redacted] this Court must conclude that any reference to activities (with the exception of those discussed earlier) that occurred outside of the critical dates of this prosecution must be excluded from the trial. See supra at 9-15. Accordingly, [redacted] the defendant can testify generally, for example, that [redacted] but [redacted] are irrelevant. The same is true for the following sentence, to the extent that the defendant seeks to relay to the jury information occurring outside the dates identified earlier regarding [redacted] Def.’s Notice at 36.

(g) Topic 7: The Israel-Palestine Relationship, Including the Emergence of Mahmoud Abbas (AbuMazen) as an Alternative to Yasser Arafat and the Threat that Hamas Posed to Peace and Security

After reviewing the narrative in connection with this topic, the Court must conclude that the classified information contained in the narrative is relevant and should not be excluded under either Rules 401 or 403.

(h) Topic 8: A Tense Diplomatic Crisis Arising During the First Half of July 2003 From the Arrest of Turkish Soldiers by U.S.Forces

After reviewing the narrative in connection with this topic, the Court must conclude that the classified information contained in this narrative is relevant and should not be excluded under either Rules 401 or 403.

(I) Topic 9: The Unrest in Liberia in June and July 2003, Culminating in the Fall of Charles Taylor in Early 2003; the Danger to the U.S.Embassy and its Occupants in Monrovia; and the United States’ Role in Protecting Civilians Caught in the Strife

After reviewing the narrative in connection with this topic, the Court must conclude that the classified information contained in this narrative is relevant and should not be excluded under either Rules 401 or 403.

3. The Classified Information Contained in the Documents 30

Based upon the rulings set forth in this opinion, there are thirty-five documents *18 [redacted] containing classified information which the defendant seeks to introduce at trial in whole or in part. After reviewing these documents, the Court must exclude certain portions of the documents under either Rule 401, 403, or both. The Court will begin with the information contained in these documents that apply to multiple documents.

Many of the documents proffered by the defendant are notes that he took at various meetings. Almost without fail, at the top of each set of his notes, the defendant has written the date and time of the meeting, the location, who was present (and whether those present constituted, for example, the National Security Counsel, the War Council, the Principal’s Committee, or the Deputy’s Committee), and how the individuals participated in the meetings (live or via secure video teleconferencing). See, e.g., Doc. 49, 54, 81, & 85. Other than the date and time of the meeting, and the fact that the defendant was a participant, the additional information in his notes referenced above is simply not relevant. As this Court has repeated time and again, it is what the defendant contends was dominating his attention that is critical in this case. Whether or not another administration official was present at these meetings is simply irrelevant. Even if this Court could conclude that such information was relevant, it would nonetheless be excluded under Rule 403 because such information would mislead and confuse the jury for the following reasons. First, if the jury were exposed to the entire cast of characters at each of these meetings, they would undoubtedly lose sight of what is important to this case — the activities on which the defendant was purportedly focusing his time and attention. Rather, the jury would likely also focus on the matters these other administration officials were exposed to and that assessment would have nothing to do with the issues the jury will be asked to resolve in this case. Thus, the names of these participants will be excluded. The same is true for entries in documents that list what administration officials the defendant anticipated would be present at future meetings. See Doc. 115.

The defendant’s meeting notes also often contain statements made by the various meeting participants. For the same reason expressed above, the defendant may not, under Rules 401 and 403, generally attribute to his own state of mind statements made by other meeting participants. That cannot be said, however, for statements attributed to the Vice President of the United States. There can be little argument that the Vice President’s state of mind and actions would have significant impact on the state of mind and actions of the defendant, who served as his Chief of Staff and National Security Advisor. Accordingly, since the Vice President is the defendant’s direct supervisor, the jury could reasonably infer that statements made by the Vice President in the defendant’s presence impacted the defendant’s state of mind. 31 Therefore, the *19 defendant will be permitted to reveal statements made by the Vice President as memoralized in documents 2, 3, 9, 75, 76, 166, 178, 179, 181, and 268. 32

Other than the limitations set forth in this section, the Court must also conclude that certain portions of these documents must be excluded under Rules 401 and 403. First, for the same reasons discussed in the context of [redacted] there are certain names that must be excluded as they are not relevant and their introduction would violate Rule 403’s prohibition on introducing testimony that would confuse the issues the jury has to address and waste time. Those names appear in the appendix to this opinion. 33 And there are two documents that require more substantive redactions under 401 and 403. One is document [redacted] While the fact that the defendant received this information is relevant, the details outlined in this document is not necessary and is therefore irrelevant. Accordingly, the following information must be redacted [redacted] In addition to being irrelevant, this level of detail concerning [redacted] would likely confuse the jury and cause them to focus on matters that are not at issue in this trial. Similarly, [redacted] contains a significant amount of information concerning [redacted] details that are simply irrelevant and which will likely also confuse the jury. This information will therefore be excluded under Rules 401 and 403.[redact-ed] 34

B. Documents and Information Related to Ambassador Joseph Wilson and Niger

The final group of documents that this Court must examine are those relating to Ambassador Joseph Wilson and Niger. As to these documents, the parties have been able to resolve virtually all of their disputes. In fact, of the twenty-nine documents that remained at issue as of September 27, 2006, the parties have now informed the Court that they need a definitive ruling on only one document. 35

Document 75 is the defendant’s task list for June 10, 2003. 36 In this document the defendant lists the many action items he was to address, [redacted] However, the fact that [redacted] is all irrelevant and must be excluded for the following reasons. First, the average person will not know [redacted] and thus introduction [redacted] would waste time as the background of this [redacted] would have to be explained to the jury, without there being any benefit derived from the explanation. Moreover, introducing [redacted] would confuse and mislead the jury by diverting their attention from the task actually before them. Accordingly, the statement in this document that [redacted] will be ex- *20 eluded under Rule 403. However, the defendant may state generally [redacted]

III. Conclusion

The CIPA is an extraordinarily valuable procedural tool, which is designed to ensure that all who have allegedly committed criminal violations can have their fate decided at a trial. In some cases, the CIPA can be undoubtedly applied without much fan-fare and with little difficulty. This, however, is not one of those cases. And the process as played out in this case has demonstrated that the CIPA has its imperfections. For example, requiring a court to make definitive pretrial determinations on the admissibility of classified documents and other classified information is an arduous task at best, as the court is forced to look into the future and attempt to divine what evidence each party will present to the jury. Although both parties have attempted to elucidate how they believe the trial will unfold, no party can say with absolute certainty what a witness will say, or what questions will be asked, and this Court would not dare limit the witnesses’ testimony to verbatim recitations of the attorneys’ pretrial proffers. In essence, the CIPA requires a court to play the role of Johnny Carson’s character, Carnac the Magnificent, by requiring that it render rulings before knowing the exact context of how those rulings will coincide with other evidences that has actually been developed at trial. Nonetheless, as this Court has demonstrated herein, it has made those calls and excluded what appeared to be clearly irrelevant and prejudicial evidence. However, because the CIPA requires the Court to, in effect, look into a crystal ball to assess use and admissibility, the Court has made its Section 6(a) determinations with a slant towards admissibility, to ensure that the defendant has every opportunity to present his chosen defense. This is especially true regarding its Rule 403 determinations, as Rule 403 “is an extraordinary remedy to be used sparingly because it permits the trial court to exclude otherwise relevant evidence.” United States v. Mende, 43 F.3d 1298, 1302 (9th Cir.1995) (citation omitted); see United States v. Mares, 441 F.3d 1152, 1159 (10th Cir.2006). Thus, this Court reserves, as it must, the right to alter the rulings set forth herein, and declare otherwise relevant evidence inadmissible under either Rule 401 or 403, depending upon how the facts are actually developed during the trial.

SO ORDERED this 15th day of November, 2006. 37

APPENDIX

[redacted]