The former Chief of Staff to Dick Cheney, I. Lewis "Scooter" Libby faces imprisonment in the coming weeks after being found guilty of lying to a grand jury, making false statements to the FBI, and obstruction of justice. His sentence is thirty months, very near the maximum demanded by the prosecution. The grand jury was empaneled by special prosecutor Patrick Fitzgerald to find out who leaked the identity of Valerie Plame, a CIA operative, to a reporter [timeline and more details]. It has been claimed by some that such an act may have been part of a deliberate plot to undermine Plame’s husband Joseph Wilson, a critic of the Bush Administration’s claims that Saddam Hussein was actively seeking uranium for a nuclear program in the years before the American invasion in 2003. Speculation and politics have shrouded the investigation since its beginning.
As it currently stands, Libby has been convicted of a crime (though the appeal process continues). I’m not interested in disputing the details of his trial and conviction. The real question is: how long should he serve for his crime? Context is key. Why, for example, was there a grand jury? Why did Fitzgerald assume the mantle of special prosecutor in the first place? What crime was being investigated?
The answer should be clear from Fitzgerald’s findings. We know who leaked Plame’s name (Richard Armitage) and we know Armitage has not been charged with anything. Why not? Because leaking Plame’s name was never a crime. Plame was not a covert agent. She worked at CIA headquarters and had not been stationed abroad within five years of the date of the revelation of her identity in Robert Novak’s column. Fitzgerald appears to have begun the investigation knowing no crime had been committed. Here is Victoria Toensing in the Washington Post:
On Dec. 30, 2003, the day Fitzgerald was appointed special counsel, he should have known (all he had to do was ask the CIA) that Plame was not covert, knowledge that should have stopped the investigation right there. The law prohibiting disclosure of a covert agent’s identity requires that the person have a foreign assignment at the time or have had one within five years of the disclosure, that the government be taking affirmative steps to conceal the government relationship, and for the discloser to have actual knowledge of the covert status.
How can Ms. Toensing speak with such authority on this issue? Because she was one of the architects of the original law.
The CIA is well aware of the requirements of the law protecting the identity of covert officers and agents. I know, because in 1982, as chief counsel to the Senate intelligence committee, I negotiated the terms of that legislation between the media and the intelligence community. Even if Plame’s status were "classified"–Fitzgerald never introduced one piece of evidence to support such status — no law would be violated.
There is no better evidence that the CIA was only covering its rear by requesting a Justice Department criminal investigation than the fact that it sent a boiler-plate referral regarding a classified leak and not one addressing the elements of a covert officer’s disclosure.
Fitzgerald declined to prosecute the leaker. Why? Because from the very beginning there was no case. Because the leaker didn’t commit a crime. The only crime committed was during the commission of the completely unnecessary investigation: Libby’s perjury. Far from a malicious attempt to obstruct justice (how could it be if the investigation was illegitimate?), Libby’s lie was essentially irrelevant (though one might say the same of any evidence given in an investigation of a non-crime). Nevertheless Libby has been found guilty of lying to a grand jury. Pardoning him might send the message that perjury is not a serious crime, and at any rate his appeal process is still ongoing. Commuting his sentence would more appropriately reflect the unnecessary and wasteful nature of Fitzgerald’s investigation. Whatever the President decides in this situation, the unfortunate reality is that Fitzgerald is not finished bringing high-profile and essentially groundless cases against people, witness Conrad Black’s trial in Chicago.)
-Richard
For those still interested, Michael Kinsley wrote an interesting editorial in NYT today comparing the political context for the prosecution of Mr. Libby the impeachment of Mr. Clinton. Kinsley argues that in the political setting that they found themselves in, both Mr. Libby and Clinton had no choice but to lie, and therefore we should sympathize with them both. Not sure I agree, but the comparison is interesting. A few days ago, Dave Brooks from NYT laid out the conservative view that Mr. Libby is the only normal person who was involved in this “political farce”, and that he is paying for the sins of others. He makes the interesting claim that the Wilson report never did say that the Niger link was bogus. Odd that no one has attacked Mr. Wilson for misrepresenting what his report actually said. Perhaps this is wishful thinking on Dave’s part. An interesting coincidence – Mr. Libby has some experience in lobbying to get a pardon from a president. He represented Marc Rich who received a pardon from Bill Clinton in the last days of that presidency.
No one has been charged for any “underlying crime” because Mr. Libby’s perjury stopped the investigation.
If there was nothing to hide, why’d Libby lie?
Yes, I think we have reached a synthesis. The Bush Administration is a disgrace. I don’t think their motives were ever pure, just slightly better than malicious. And perhaps there is an argument to be made that in some circumstances incompetence can cause even more damage than evil intent. Cheers!
Richard, that was a good comment. No question that the Bush Administration believed that the Iraqi invasion could be justified strategically and morally, even if it had a very questionable legal basis. Given the sloppy preparation, the Bush Administration most likely also believed that it would be easy. But in politics, there is always another motivation — political success. Midterm elections were looming, there had been no more spectacular attacks in the US (despite repeated warnings) and the euphoria over the Afghani victory was waning. There was a need to “score again” against easy targets — soft Europe, and weak Saddam — in order to solidify public support for the manner in which the Bush Administration was handling the “war against terrorism”. Gaining another quick military success was the logical political choice. And it worked — though only temporarily (because of the mess that was produced). But, the suspicion that political motives may have trumped common sense and decency troubles me. And I do believe that many US voters are disillusioned with the Bush era, because as we go on “fighting the good fight” (there is no choice), there is a nagging sense that we have been manipulated. We got rather nasty politics instead of wisdom when we needed it.
Saddam was seen as an imminent threat only after 9/11. Before that most Americans would have had a hard time believing 19 men with boxcutters could cause so much damage to their country. They began to view potential threats in a very different light. After the successful invasion of Afghanistan, the American government came up with a new policy: playing offense. The government looked back on the late 1990s and felt they had been far too confident in their security. After Afghanistan, Enemy #2 was Saddam who they believed had WMD and who they believed would happily sell such weapons to terrorists (after all he did support local groups like Hamas and Hezbollah whose MO was killing civilians, not to mention being an all around menace to his own citizens and neighbours). So the Bush Doctrine was established. I’m not arguing about the legality of the war, only the intention behind it. It is also important to remember the extraordinary American military confidence of the time. Success in Bosnia, Kosovo, and Afghanistan with an absolute minimum loss of life. I think the American government thought they could steamroll any enemy country in 3 months or less. 3 months in Iraq, 3 in Syria, 4 in Iran, and the Middle East would be in ship-shape (or failing that, at least America would be safer). I am not denying the hubris or the tactical failures, etc, only that the rationale for war was driven by a motivation to protect the USA and free the Iraqis from a terrible leader. Claims that the main reason for the invasion was America wanted Iraq’s oil or wanted to build bases in the Middle East or wanted to start a civil war in Iraq (some people do claim this) to my mind are revisionist and are conspiracy-minded. But perhaps there is another coherent reason why the USA invaded Iraq and deposed Saddam?
Sorry – still not persuaded. Going back to the UN Charter, the threat to justify war had to be imminent. Saddam had had WMD for years before he got rid of them, but no one thought he posed an imminent threat back then. Just why did the threat become imminent? Using hindsight, it was not. But for whatever reason, the Bush Administration had decided that Saddam had to go, and so it needed to give the appearance of impending doom to justify the use of force. This was why it misrepresented the nature of the threat, even making it out as a nuclear one (thus the Niger silliness). This was an active misrepresentation, not just negligence, and it was done to make people believe that Saddam posed an imminent threat. Sorry – still no sympathy for Mr. Libby
There is a big difference between criminal negligence (which I agree is an accurate charge) and the notion that the administration had knowledge in advance that Saddam had no WMDs and lied about the evidence. I think they believed he was a threat and believed he had WMDs. The evidence may have been stovepiped or on occasion massaged, not as a pretext to going to war but for the sake of making the salespitch is easier. It was assumed that Saddam, beyond any doubt, had weapons; the evidence was almost a secondary concern. So the difference is between outright lying to the American people and negligent, faith-based reasoning. I think this is an important question/distinction to consider when sentencing someone.
Well, I’m sure his sentence will be commuted -whatever you say about Bush, you can’t deny that he is loyal to his friends. To answer your seemingly rhetorical question, Richard, there is no clear distinction between a deliberate lie and a false claim/half-truth – a half-truth is also a half-lie, and it seems like there is a sliding scale. To Bush’s credit, smart people like Tony Blair also thought there were WMD, though I guess Blair sold the war more directly as a war for Democracy. However, it seems unlikely that Bush was “reluctant” to invade Iraq and got duped by some intelligence – his administration was clearly not a “victim” of institutional failure in this regard, but had various pre-existing rationales for the war and was criminally negligent in ensuring that this particular ground for war was in fact true before selling it to the American people.
For the sake of argument, let’s agree that Ms Plame’s approval of her husband’s trip to Niger was inappropriate. Inappropriate or not, Ms Plame’s husband produced a report from the trip on a key issue (concluding that Niger was not involved in efforts by Saddam Hussein to gain materials needed to produce nuclear wweapons). The report was correct. It was also ignored by the Bush Administration at the time that they pressed the case that Saddam Hussein posed an imminent threat because of the supposed Niger link. Time afte time in his speaches on the subject, the President linked Saddam Hussein and nuclear weapons. At the end of the day, didn’t the public have the right to know before the invasion that this argument was bogus, and that the Bush Administration knew or should have known that it was bogus? I believe that Mr. Libby understood the consequences of this coming out. This was why he attempted to discredit Wilson, block the investigation about leaking Ms Plame’s identity and eventually why he perjured himself. You are right. It was not about Ms Plame. Mr. Libby was more likely concerned that the larger truth would come out about how the Bush Administration had pushed the country to war. He may also have wished to shield the Vice President (his boss) by focusing attention on himself. But the key point is that the truth, or at least pieces of it, has come out. So is Mr. Libby the ?fallen soldier” that should be pardoned? I am afraid I can muster very little sympathy for him in the larger context. he betrayed the public trust in more ways than one.
I agree that the administration’s efforts to make reporters aware that Wilson’s wife sent him to Niger was an effort to discredit his findings. Was the vice president blindly striking out at an individual who had bravely revealed the government’s web of lies? The question of intention in the Libby case is a microcosm of the larger debate over the administration’s intentions in making the case for WMDs. Was there a deliberate plan to lie to the American people about WMDs? Or were false claims, half-truths, etc, cooked up into a story as a result of institutional deficits and negligence and irresponsibility on the part of key officials? I think the difference is very important. Was there an effort to discredit Wilson because he told truth to power, or was there an effort to discredit him because the vice president sincerely believed (the merits of the case aside) Iraq was a national security threat and Wilson was not a credible critic and should not be perceived as such?
According to a bipartisan Senate intelligence report, Wilson was indeed suggested for the trip by his wife (the correction at the top of the linked-to article is a great play-within-the-play). While this may or may not have influenced his findings, it does have the appearance of nepotism. Ordinarily, such a fact should be a part of the public record and part of the debate about his findings. Unfortunately, for everyone involved–Libby, Plame, etc–to identify the woman as a CIA agent is a criminal offence. You’re probably right–the reason no one was charged with exposing her identity was because no one had any intention of destroying her career or risking national security (or knew that she was covert). The plan was always to put it on the public record that Wilson, accusing the government of manipulation of intelligence, had been suggested as an envoy–“sent”–to Niger, due to the influence of his wife. I think that this was important information. But clearly, like so much else, this plan too was botched.
Good question. By the way, Mr. Libby was one of the leakers — see the WP article — so perhaps there is some poetic justice here. Getting back to your point, the prosecutor apparently decided he could not prove all elements of the crime beyond any reasonable doubt based on the evidence available (most troubling would be the intent issue). Should the prosecutor have realized that before he called Mr. Libby to testify? I doubt it. We might recall that the White House destroyed some evidence. Still, in my view, none of this vindicates Mr. Libby’s perjury. It was not a matter of a small mistake. He was trying to block the investigation. Perhaps he succeeded … in part. The reason went beyond who Ms Plame was. He was trying to discredit the notion that the Bush Administration used less than credible sources to justify the argument that Saddam had to go. This is indeed serious stuff. Whether the invasion was the right thing to do, in my view, no democratic system can tolerate high level mendacity over such key policy choices.
Well, that is a blow to my argument. But I guess I would have to defensively return to the question, if there was a crime and there was a culprit (Armitage, among others) then why have these people not been charged? Why should Libby be going to prison while the original leaker (the person who has threatened national security by revealing a covert agent’s name) is free to walk the streets?
Interesting blog on Mr. Libby. But your key point that Ms Plane was not covert is contradicted by Frank Rich writing an editorial in NYT today as well. He hyperlinks to an article from the Washington Post
http://www.washingtonpost.com/wp-dyn/content/article/2007/06/08/AR2007060802478.html
— and I clip out text from the article
1. Valerie Plame wasn’t a covert operative.
Wrong. She was.
Granted, this wasn’t so clear at the start of Fitzgerald’s grand jury investigation, so Libby’s allies argued that the beans he spilled weren’t that important to begin with. In fact, many of the officials who knew about her classified CIA status kept mum, which let Libby’s pals jump to assert that she wasn’t an undercover operative at the time of the leak.
But a CIA “unclassified summary” of Plame’s career, released in court filings before Libby’s June 5 sentencing, puts this one to rest: The CIA considered her covert at the time her identity was leaked to the media. The CIA report said that Plame had worked overseas in the previous five years and that the agency had been taking “affirmative measures” to conceal her CIA employment. That echoes the language used in the Intelligence Identities Protection Act, which makes it a crime to reveal the identities of covert CIA officers.
When Libby was convicted, some conservative pundits complained that Fitzgerald had presented no compelling evidence at trial that Plame was covert. But that wasn’t for lack of evidence; it was because Libby’s lawyers convinced the court to bar any mention of her status during the trial, arguing that evidence suggesting that her job was classified would have been “unfairly prejudicial” to their client.
The CIA isn’t famous for its clarity, but it’s being pretty blunt on this issue: Langley says she was covert. Which other spook bureaucracy do you need to ask?