Wednesday, May 30, 2007

excellent "plain-english" arguments for access to libby-supporter-letters. . .

or, what the "big media" had to
say on the subject -- and, of course
(because i agree with them), they are
clearly right about this one. . .

seriously, this is an both bmaz's and MSM's
are excellently-crafted arguments -- it
each one rings all the right bells. . .

and here are my views on this,
as of last friday evening
. . .

i've updated mine, to set 'em,
side-by-side, below, with bmaz
on the left
, in blue
italicized font -- and
big ole' bad media -- edited
for length -- on the right.

[you'll need to click (lower, right) to
enlarge the big media's argument image.]


. . .Amicus Petitioners are electronic journalists (bloggers) interested in, and reporting on, United States v. Libby since well before the trial, and who covered the entire trial in said capacity. The reportage of electronic journalists (bloggers) on the Libby case has been noted and praised by entities from the New York Times to the New York University School of Journalism, and reached an audience estimated in the millions of people per day during the jury trial resulting in Defendant’s conviction.

In preparation for his sentencing set before this Court on June 5, 2007, Defendant Libby has solicited and/or adopted an undisclosed number of letters from friends and associates in an attempt to influence the Court to mitigate the sentence to be handed down. The Court has issued an order requesting position briefs from the named parties as well as relevant interested media, as to whether said letters and materials should be made public.

The government, in its “Memorandum Regarding Disclosure Of Sentencing Letters” dated May 25, 2007, takes no formal position on the matter, but clearly indicates the significant presence of letters from current and former public officials that are presumptively public and disclosable under United States v. Kushner, 349 F. Supp.2d 892 (D.N.J. 2005).

Defendant Libby, predictably, argues that that there should be no release, disclosure, nor other public knowledge of these important letters filed for the purpose of mitigating his sentence. In a critical portion of his memorandum requesting secrecy, Defendant Libby states:

"Given the extraordinary media scrutiny here, if any case presents the possibility that these letters, once released, would be published on the internet and their authors discussed, even mocked, by bloggers, it is this case". (Libby Response to Court’s Order of May 17, 2007, page 5)

As electronic journalists (bloggers) covering this case and it’s trial, along with numerous other fellow bloggers, both large and small, Amicus Petitioners object to Defendant Libby’s acerbic and scurrilous characterization of their honest, professional and insightful coverage, and argue there is a compelling public interest in the facts and circumstances surrounding this case and any sentence entered by the Court. This case involves obstruction and corruption of the government of the United States by its highest officials, and specifically, Defendant Libby. The public has a right to know, see, and discuss the efforts of it’s public officials, former public officials and publicly recognized power brokers to deny, minimize, mitigate and otherwise soft sell, and seek leniency for, Defendant Libby’s criminal conduct committed in the public’s offices and halls of Constitutional democracy.

This case involves obstruction of justice by one of the government’s highest ranking and most powerful officials, Defendant Libby. Additionally, the Government presented abundant evidence that Defendant Libby’s obstruction served to obscure the recklessly indifferent actions of Vice President Dick Cheney and other high officials in the leaking of CIA covert agent Valerie Plame Wilson’s identity, as well as an important front company the CIA operated for monitoring and containing weapons of mass destruction. Since the second-highest ranking official in the country may have benefited directly from the Defendant’s lies and obstruction, the public’s interest in any benefit to the Vice President or any other public official, and related interests, that would accrue from lenient treatment of Defendant Libby must outweigh any purported interests of privacy in the sentencing letters at issue.


As Defendant Libby admits in his memorandum, there are three central reasons that could support the public release of the sentencing letters in a case like the one at bar. A “citizens desire to keep a watchful eye over the workings of the government,” the need to foster public confidence in the administration of justice, and to encourage informed civic discourse.

There is a presumption in our legal system for honesty, openness, full disclosure and public knowledge. Every action on the part of Defendant Libby that led to his indictment and conviction in this case was an affront to those concepts. Defendant now seeks to continue gaming the system, and the public’s knowledge, understanding, and trust in government by concealing the actions he and his supporters have undertaken to influence and minimize the final judgment of this Court as to sentence and disposition. Defendant Libby’s request is crass, objectionable and, quite frankly, contrary to even the spirit and intent of his own cited authorities.

The two primary cases Defendant cites are United States v. Kushner, 349.F.Supp2d 892 (D.N.J. 2005) and Nixon v. Warner Communications, 435 U.S. 589 (1978). Kushner does not support Defendant Libby’s claim of privacy for the letters at all. Indeed, as noted in Special Counsel Fitzgerald’s Memorandum, a fair reading of Kushner indicates that letters of current and former public officials may well be presumptively subject to disclosure. Neither does Nixon support Defendant’s claim for secrecy. In fact, Nixon, in discussing the preference for, and presumption of, openness, merely stated that a trial court’s evaluation and sound discretion should “be exercised in light of the relevant facts and circumstances of the particular case.” 435 U.S. at 598-599.

Subsequent courts have indicated that the strong presumption for disclosure and public access to judicial records and other items having bearing on the adjudication of a case identified by the court in Nixon should be safeguarded and cherished to protect “the significant interest of the public in observation, participation and comment on the trial events.” United States v. Criden, 648 F.2d 814 (3rd Cir. 1981); United States v. Martin, 746 F.2d 964 (3rd Cir. 1984).

The case at bar may well present the most compelling “relevant facts and circumstances” imaginable for a court to insure complete public disclosure, knowledge and transparency of sentencing letters, and other items, submitted for the purpose of influencing the Court’s actions. Not only does Defendant Libby fail to argue that he will suffer any prejudice from the public release of the sentencing letters in this case, he admits point blankedly that sentencing letters are specifically designed to provide the Court “with information about the defendant critical to the court’s responsibility to fashion a just sentence”. (Defendant Libby’s Memorandum on Sentencing Letters dated May 25, 2007, page 1). If it is critical to the court’s determination, it is critical to the public to know and understand.

As stated above, the entire genesis of this case emanates from the aura of secrecy, subterfuge, dishonesty, and obstruction by Defendant Libby and a coterie of like minded public officials and agents operating in the highest branches of our government. Defendant’s actions have served to fundamentally undermine the public’s trust and confidence in their government. The greater “facts and circumstances” surrounding this case, and the actions for which Defendant Libby stands convicted and before the Court for sentencing, literally involve no less than life, death and the taking of our country, and its young soldiers, into a disastrous war on the wings of misrepresentations and deception.

At every turn of the larger story behind the instant case, there have been hidden agendas and amorphous figures manipulating the levers of power and truth. Special Counsel Fitzgerald has been vociferous in describing the continual “sand thrown in his eyes”, by the actions of Defendant Libby and the associates he seeks to conceal, that have prevented the Special Counsel and his grand jury from getting to the whole truth. The Court itself has been similarly affected, albeit it to a lesser degree. Defendant Libby and his defense team inferred to the Court and jury that powerful people, and high ranking officials, would be coming forth to tell the truth and explain the propriety and legality of Defendant Libby’s actions; but, after the consumption of so much court time in preparation, and direct inference to the jury, they never materialized. They never do when it is time for honesty and transparency.

The very actors, agents and public officials, both current and former, that originally cheered, supported and enabled the duplicity and perfidy described herein, and profited thereby from having thrown sand in the eyes of the Special Counsel and his grand jury, are likely the same for whom Defendant Libby now wants to cloak in secrecy, yet again, for their exercise of power, authority, stature and influence over the sentence adjudicated by this Court. Defendant Libby should be denied in this brazen request.

These individuals made the conscious choice to interject their words and influence in this very public case when they submitted statements and evidence in an attempt to influence the Court’s sentencing discretion. Of critical significance, none of the individuals have come forward to affirmatively allege the potential for prejudice, harm, nor any other basis for secrecy. It is the position of Amicus Petitioners that, absent some affirmative request and showing of cause by the individual authors of the pertinent letters, Defendant Libby has neither the standing nor the right to demand secrecy for the sentencing letters submitted by others.


For the foregoing reasons, Amicus Petitioners urge the Court to deny Defendant Libby’s attempt to cloak in secrecy the efforts of powerful and interested public figures and officials, both current and former, to materially influence this Court’s determination of sentence to be imposed. The American public, and responsible media of all shapes, forms and sizes, including Amicus Petitioners, have an abiding interest, and right to know and trust, in a transparent and open manner, all the facts and circumstances surrounding the final sentence and disposition in this important and seminal case.

this 30th day of May, 2007.

/s/ Amicus Petitioners

excellent! -- citizen participation
by blog-swarm legal filings!


seriously -- it seems we have arrived at
a point of inflection -- a point at which
a new set of precepts must be sorted. new,
unfiltered interests, or at least a new
way of viewing those interests, must be
taken into account. . . with direct access,
by the public, to real-time judicial
records -- and the ability to instantly
analyse, circulate and critique each such
document for what (occasionally) amounts
to an audience greatly exceeding any single
"old, big media" outlet, the sort of message
control once possible in political discourse
has vanished into the sunset, like the horse-
culture of the old west. . .

these are the new media days -- and on june 5,
2007, it is likely that judge walton will all but
say so -- i predict he will grant access, not just
to the old paper and t.v. journalism outlets, but
also to the blogging-public, of just about all
the information in just about all the letters.

home phone numbers, home addresses, and
deeply personal events will be redacted;
but i bet all else will be seen. . .

i just think he will wait until immediately
after the sentence
to make 'em available.

the interests of justice will be well-served,
in my opinion, in either case. . . so long as
there is sunshine -- there is accountability.


condor said...

nolo and all others - I also filed an Amicus Brief, along with the "big media" in relation to the sentencing, and Libby letters, issue. The filter would not let me post a link, but if you click on my name, it should take you there. Take a look, you will like it I promise.

Posted by: bmaz | May 30, 2007 at 22:30

condor said...

w e l c o m e. . .

and thanks, bmaz -- i moved yours
to this spot, now that i have
posted on the access issue. . .

will go read yours, now. . .

do stop back -- and, thanks
for your input!

bmaz said...
This comment has been removed by a blog administrator.
Anonymous said...

bmaz said...
nolo - I am trying to figure out how to have the link go to a pdf file that doesn't look so bogus. If you want me to email you pdf files of the actual documents (brief and motion for leave to file) I would be happy to.

[email details redacted -- by nolo]

condor said...

i hope you won't mind my
setting your entire petition
in my post, above -- let the
unfiltered viewing begin, eh?

p e a c e

bmaz said...

nolo - Thanks for taking the email address out; you are free to use it if you wish. As to the question you left on our blog, bmaz is me and I am not only not the same as Blue Girl, I am not a girl at all. Blue Girl runs Watching Those We Chose. I don't do a lot of posting, preferring most of the time to add my thoughts in at The Next Hurrah, FDL and Washington Monthly. As Blue Girl is the force behind our blog, I thought she should be recognized as a named party with me on our filings. I have been exposed to the legal work of the First Amendment Coalition and their successors and had a pretty good idea how they would brief.

I wanted to do something that was a companion to their type of arguments, but less buttoned down and more oriented to the concerns we have all been expressing in the blogosphere. And defend the bloggers up front and loudly, which there was no chance of happening from the media consortium attorneys. Thanks for your efforts on everything and thanks for getting the word out!

condor said...

well -- don't get used
to this sort of instant
gratification from the
legal process
, bmaz, and
bluegirl -- but CONGRATS!

you (and, we all) win!