The government has responded to that 11/14 sealed defense filing, and the government’s filing is not sealed. I am excerpting key parts of it here, because it explains the Judge’s 11/16 Order to vacate, and confirms that he was responding to a defense argument about CIPA’s Section 6(c) that the government, in its response, finds “alarming.” The government quotes from the defense’s sealed filing. This is what the CIPA process (and thus the fate of the Libby case) has come down to (emphasis added):

An even more alarming assertion in defendant’s CIPA Memorandum – one that completely controverts the purpose of CIPA and reveals defendant’s true graymail motivation – is the assertion that Congress’ contemplation of an acceptable statement admitting relevant facts would only be satisfied in this case if the government admitted that “the national security matters were vastly more important to Mr. Libby than the snippets of conversation concerning Valerie Wilson and thus caused him to confuse or misremember those snippets when asked about them months later.” … The drafters of CIPA contemplated that the “statement admitting relevant facts” would be a statement admitting relevant “facts,” not a statement of conclusions the defense wants the jury to draw. The government has offered a statement admitting relevant facts that serves the purposes contemplated by CIPA, in addition to proposing detailed substitutions for all of the relevant classified exhibits…
…
In fact, during the Section 6(a) hearings, even defendant admitted that balancing of the government’s right to hold people accountable for criminal activity and not subvert the process through graymail is proper at the Section 6(c) stage: [by Mr. Cline:] “And I think when we get to the substitution phase, that is where Congress sought to find a way of balancing these needs.” … Now that the Court is at the Section 6(c) stage, defendant conveniently seeks to avoid such balancing.

- Special Counsel Fitzgerald 11/16/06, including key quotes from a sealed 11/14 defense filing

The defense is also apparently disputing how the government is allowed to use the ex parte affidavit permitted by Section 6(c)(2), and trying to blur the line of CIPA’s “substantially the same ability to make his defense” standard [probably the nuance I missed]. So Judge Walton apparently felt he needed to rethink his Opinion in light of this parsing of the meaning of CIPA; I sure hope he gets it right when he re-issues his Opinion. This filing, as highlighted, also makes it sound like the government has already provided substitutes to just about everything that couldn’t be declassified, pending perhaps a few items still being worked on, in addition to this dispute over how CIPA’s substitution phase is supposed to work.

P.S. One thing I haven’t seen the AP cover yet (although they may have) is the three government memorandums in opposition to the defendant’s motions in limine. The government’s three memos were all filed after Monday this week, with their side of those motions spelled out (they call two of them “moot” and ask for the one about the reporters to be denied). I believe replies will be due by noon on Friday. [The AP has covered the Libby response to the government’s sole motion in limine - that was the article Swopa excerpted and posted about the other day.]

The crux of today’s Order vacating Monday’s Opinion is this:

“Specifically, the Court’s opinion discusses the Section 6(c) standard in the terms of a balancing test, which might be misleading. What this Court intended to express is that the government’s challenge to the defendant’s use of classified information remains a consideration during the Section 6(c) proceedings, but only to the extent that the assertion affords it the opportunity to propose redactions or substitutions for the classified information the defendant desires to use. At that point, the assertion drops out of the Section 6(c) picture and the Court must exclusively focus on whether the redacted or substituted version of the classified information the defendant desires to use provides the defendant with substantially the defense he desires to present.”

Seems to me that this approach was effectively what Monday’s Opinion was detailing (although the Opinion did seem to spend a lot of time ‘propounding the obvious’ repeatedly – presumably for an Appeals Court’s benefit), but I may be missing an important nuance here.

Note that Judge Walton actually vacated his November 13th Opinion in an Order filed today, November 15th (he says it wasn’t clearly written). I’ve got a longer analysis of today’s filings I’ll post in a current thread, for anyone who’s interested. [Things are moving fast and furiously this week in the CIPA process, but it’s damned hard to figure out who’s got the upper hand because of all the sealed filings.]

It’s not $, he can spend whatever he needs to (though he has been fabuloulsy frugal with the public fisc).

It’s the people. There are only a tiny handleful of people on the planet who have the right combination of clearances, experience and availibilty to do this case. it would take a long time for someone to come in at tis late date and “read in” on the file and gain sufficient fmailiarity with the file’s contenets to do such painstaking work.

Nope, it’s a miserable Thanksgiving/ christmas season for Team Fitz.

I don’t think (based onthe public information) that Team Irving can win this case. What they have succeeded in doing, with ruthless efficiency, is to make this case as grinding and physically exhausting and mentally tediuos as they possiblity could for the prosecution and, to a lesser extent, for the judge and his chambers staff.

Naive, non-lawyerly question for Christy or whomever:

Do the the feds (e.g. Fitz et al) ever (or are they allowed to) accept volunteer help for some of the “painstaking, meticulous work” from outiside lawyers who may have time on their hands (assuming, in this case I presume, that they have the necessary security clearances)?

I don’t see how. There are rules against disclosing Grand Jury material as well. It’s not the payment of salasy that is the issue. An outside lawyer —if they had the right clearances and signed the required Executive Agreements– could do the work– that person would have to be appointed a Special Assistant US Attorney by the Attorney General or could possibly be be appointed a special assisatant special prosecutor by Fitz (there is no precident for doing things procedurally the way Comey set this up–so no one really knows the answer)

The reall problem would be having the right clearances and having them be current. It would have to involve someone who was very high up the food chain at DOJ or one of the US Attorney’s Offices, who was doing national security work, who only very very recently left the government, who has a day job that will allow that person to just take off for weeks, Oh–and who does nt have a conflict of interest either from prior work at DOJ or by virtue of current employment.

Where you gonna find someone who fits that profile? Clearances on the level Fitz needs take months or years to get and expire in a short time if not renewed.

Do the the feds (e.g. Fitz et al) ever (or are they allowed to) accept volunteer help for some of the “painstaking, meticulous work” from outiside lawyers who may have time on their hands (assuming, in this case I presume, that they have the necessary security clearances)?

Here’s the link to C & L that has video of Blech saying that Ellison needs to prove why he “isn’t working for Al Qaeda.”

CNN loves the hate-mongers.

-GSD

Can the Bush Republicans prove they aren’t working for (or with) Al Qaeda?

kemo at 128 — or, it could be as simple as, Hoyer has good management skills and built up a lot of chits campaigning for people the past few years.

Redd, I hope I am wrong. If there is a draw down in the next six months, I will throw in $100 to FDL ;-)