Libby's legal strategy in asserting that Cheney and other Bush administration officials authorized activities related to the underlying allegations of criminal conduct leveled against him, without approving of or encouraging him to engage in the specific misconduct, is reminiscent of the defense strategy used by Oliver North, who was a National Security Council official in the Reagan administration.
North, a Marine lieutenant colonel assigned to the National Security Council, implemented the Reagan administration's efforts to covertly send arms to Iran in exchange for the release of American hostages held in the Middle East, and to covertly fund and provide military assistance to the Nicaraguan Contras at a time when federal law prohibited such activities. Later, it was discovered that North and other Reagan administration officials had diverted funds they had received from the Iranian arms sales to covertly fund the Contras.
If Libby's defense adopts strategies used by North, it might be in part because the strategies largely worked for North and in part because Libby's defense team has quietly retained John D. Cline, who was a defense attorney for North. Cline, a San-Francisco partner at the Jones Day law firm, has specialized in the use of classified information in defending clients charged with wrongdoing in national security cases.
Among his detractors, Cline is what is known as a "graymail" specialist-an attorney who, critics say, purposely makes onerous demands on the federal government to disclose classified information in the course of defending his clients, in an effort to force the government to dismiss the charges. Although Cline declined to be interviewed for this story, he has said that the use of classified information is necessary in assuring that defendants are accorded due process and receive fair trials.
In the Libby case, Cline has frustrated prosecutors by demanding, as part of pretrial discovery, more than 10 months of the President's Daily Brief, or PDBs, the president's morning intelligence briefing. The reports are among the most highly classified documents in government, not only because they often contain sensitive intelligence and methods, but also because they indicate what the president and policy makers consider to be the most pressing national security threats. In the past, the Bush administration has defied bipartisan requests from the Intelligence committees in Congress to turn over PDBs for review.
After Cline demanded the PDBs, Fitzgerald wrote to him on January 9 that the prosecutor's office has only "received a very discrete amount of material relating to PDBs" and "never requested copies of PDBs" themselves, in part because "they are extraordinarily sensitive documents which are usually highly classified." Moreover, Fitzgerald wrote, only a relatively small number of PDB pages included reference to Wilson's trip to Niger.
But Cline has insisted that it is imperative for his client's defense to be able to review the PDBs because part of Libby's defense is that he may have had a faulty memory regarding conversations he had with government officials and reporters regarding Plame, in that he had so many other pressing issues to consider every day as chief of staff and national security adviser to the vice president.
In a January 31 court filing, attorneys for Libby argued: "Mr. Libby will show that, in the constant rush of more pressing matters, any errors he made in FBI interviews or grand jury testimony, months after the conversations, were the result of confusion, mistake, faulty memory, rather than a willful intent to deceive."
In the North case, the Iran-Contra independent counsel, Lawrence Walsh, was forced to dismiss many of the central charges against North, including the most serious ones-that North defrauded taxpayers by diverting proceeds from arms sales to Iran to finance the Nicaraguan Contras-because intelligence agencies and the Reagan administration refused to declassify documents necessary for a trial on those charges.
Walsh and many of his deputies believed that the Reagan Justice Department refused to declassify documents necessary to try North because officials were personally sympathetic to him. A North trial would also have politically embarrassed the Reagan administration, and a North conviction might have led to charges against higher officials.
In court filings, Walsh said that much of what intelligence agencies and the Reagan administration had refused to declassify had long before been published in the media or made public in some other way.
"It was a backdoor way of shutting us down," said one former Iran-Contra prosecutor, who spoke only on the condition that his name not be used, because his current position as a private attorney requires frequent dealings with attorneys who were on the other side of the North case at the time. "It was a cover-up by means of an administrative action, and it was an effective cover-up at that."
The former prosecutor added: "The intelligence agencies do not declassify things on the pretext that they are protecting state secrets, but the truth is that we were investigating and prosecuting their own. The same was true for the Reagan administration. Cline was particularly adept at working the system."
