February 9, 2006

Half a Loaf ...

Acting on a motion filed late last year by Dow Jones & Co., the U. S. Court of Appeals for the D. C. Circuit has released initially-redacted portions of the court's February 15,2005, opinion in the CIA leak investigation matter, regarding the contempt findings against now-former Times reporter Judith Miller and Time magazine reporter Matt Cooper. The court reissued the opinion on February 6, with the previously-redacted portions appearing in italics on pages 30 through 39.

The 2005 opinion redacted eight pages to preserve grand jury secrecy and to protect classified information. Unfortunately for those hoping to understand the court's reasoning (the court concluded that even if there is a qualified reporter's privilege, it is overcome in this case), those eight pages presumably set forth that aspect of the court's analysis.

In its February 3 opinion, the court notes that it is unsealing portions of the opinion containing grand jury matters that the special counsel confirmed in the indictment of Lewis Libby, or which are widely known. The court retained the redaction of certain portions of the opinion and one affidavit, on the grounds that the material would identify witnesses, reveal their testimony, or damage reputations of individuals who may never be charged with a crime.

While the unsealed portions provide some interesting details, much of it is, as the court notes, already known due to the indictment. Two relatively small redactions remain in the court's analysis of the need for Miller's testimony. We do get to read the court's analysis of testimony by NBC Washington Bureau Chief Tim Russert and White House Press Secretary Ari Fleischer, which was markedly contrary to Libby's own testimony on a number of points. In contrast, the entire analysis regarding the need for Cooper's testimony--approximately three pages--remains sealed.

Now that's the stuff I want to read!

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