Court of Appeals Unseals More of Miller Contempt Case Record


"[A]s requested by Dow Jones, we will release those redacted portions of Judge Tatel's concurring opinion and the two ex parte affidavits that discuss grand jury matters revealed either during the Libby trial or by grand jury witnesses themselves."

On February 15, 2005, a three-judge panel of the
U.S. Court of Appeals for the D.C. Circuit issued a decision upholding the adjudications of civil contempt against reporters Judith Miller and Matthew Cooper. Circuit Judge David S. Tatel's opinion concurring in the judgment, as originally published, reflected extensive redactions. Since then, the D.C. Circuit has made public some of the redacted portions of Judge Tatel's opinion.

Now that the Lewis "Scooter" Libby trial has concluded, Dow Jones asked the D.C. Circuit to make public the rest of the redacted portions. In
a per curiam decision issued today, the appellate court has agreed to make public more, but not all, of the redacted portions.

Portions of the redacted  Miller opinion were first released in February 2006. Other portions --but not all of the redactions-- were ordered released now.
I discussed the Tatel opinion and the Fitzgerald affidavit on which the Judge relied at some length here. Here's a Sample from that article:
When he sought Miller's testimony, he made representations to the effect that Plame was within the reach of the IIPA (Agee Act). Here is what Judge Tatel wrote:

'As to the leaks' harmfulness, although the record omits specifics about Plame's work, it appears to confirm, as alleged  in the public record and reported in the press, that she worked  for the CIA in some unusual capacity relating to counterproliferation. Addressing deficiencies of proof  regarding the Intelligence Identities Protection Act, the special counsel refers to Plame as 'a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years'-representations I trust the special counsel would not make without support. (8/27/04 Aff. at 28 n.15.) In addition, Libby said that Plame worked in the CIA's counterproliferation division' (I-53-55, 245- 46, p.80) [emphasis added]

The proof for Fitzgerald's claim is not clear. The judge only refers to an affidavit by Fitzgerald. The only reference I can see in the affdavit that sheds a clue as to what Judge Tatel was referring to above appears at footnote 15, p. 28 of this affidavit.

"If Libby knowingly disclosed information about Plame's status with the CIA, Libby would appear to have violated Title 18, USC,Sec. 793 if the information is considered information respecting the national defense. In order to establish a violation of Title 50,USCSec.421, it would be necessary to establish that Libby knew or believed that Plame was a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years. To date we have no direct evidence that Libby knew or believed Wilson's wife was engaged in covert work." 

If this footnote wasn't designed to create the impression that Plame was engaged in covert work disclosure of which harmed national defense, it was nevertheless artful-enough a suggestion of that to persuade Judge Tatel.

Wasn't it?
We know now that neither the CIA's general counsel nor anyone in the Department of Justice ever offered an opinion on whether Plame was "covert" within the meaning of the IIPA or was even covered by the Statute. Victoria Toensing who drafted the law says she was not.

If the CIA was making specific efforts to conceal her identity, they didn''t do a very good job of it, since, among other things the agency's public officer was blabbing her employment to others,including Novak, without once indicating she was "covert" and as for her service abroad within five years, the prosecution has offered no reliable dating, no definition of "service abroad" under the act, and no refutation of her husband's assertion that she did not serve overseas in the critical time frame.