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Leak Ruling Has Mystery, 8 Blank Pages


Leak Ruling Has Mystery, 8 Blank Pages
By ADAM LIPTAK
New York Times
Published: December 3, 2005

There are eight blank pages in the public version of a decision the federal appeals court in Washington issued in February. The decision ordered two reporters to be jailed unless they agreed to testify before a grand jury investigating the disclosure of the identity of a C.I.A. operative, Valerie Wilson. What is in those pages is one of the enduring mysteries in the investigation.

In a filing yesterday, the special prosecutor in the case, Patrick J. Fitzgerald, told the court that he had no objection to the unsealing of parts of those pages, and he gave hints about what they say.

The pages, in a concurring opinion by Judge David S. Tatel of the United States Court of Appeals for the District of Columbia Circuit, analyze secret submissions by Mr. Fitzgerald. Judge Tatel suggested, in a terse and cryptic public summary of what he wrote in the withheld pages, that testimony from the reporters, Judith Miller of The New York Times and Matthew Cooper of Time magazine, was needed to determine whether a government official committed a crime in identifying Ms. Wilson.

Mr. Cooper avoided jail after his source, Karl Rove, President Bush's top political adviser, gave him permission to testify. Ms. Miller spent 85 days in jail before agreeing to testify after receiving permission from I. Lewis Libby Jr., who was Vice President Dick Cheney's chief of staff. Mr. Libby resigned after he was indicted in October on charges of obstructing the investigation and related crimes.

Yesterday's filing, in response to a motion by Dow Jones & Company, the publisher of The Wall Street Journal, seemed at odds with Judge Tatel's summary. It made clear that the case against at least Mr. Libby had for some time concerned obstruction of justice rather than the disclosure of Ms. Wilson's identity.

Mr. Fitzgerald told the court yesterday that he did not object to the unsealing of the parts of Judge Tatel's analysis concerning Mr. Libby because most of the facts in it had become public through the indictment and statements from grand jury witnesses.

Mr. Fitzgerald said he did object to unsealing other parts of the analysis. Theodore J. Boutrous Jr., a lawyer for Dow Jones, said, "We are hopeful we can persuade the court to release the rest."

Floyd Abrams, who represented Ms. Miller and Mr. Cooper before the appeals court, said Mr. Fitzgerald's filing was significant for the light it shed on the inquiry's progress.

"The revelation," Mr. Abrams said, "that Mr. Fitzgerald advised the court as early as the spring and fall of 2004 that his focus on Mr. Libby related not to potential threats to national security but to possible violations of perjury and related laws raises anew the question of whether the need for the testimony of Judy Miller and Matt Cooper was at all as critical as had been suggested."

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