Commentary Magazine


Topic: Scooter Libby

Will the Scooter Libby Rules Apply to the Obama Administration?

The arrogance of power is such that it may never have occurred to the senior government figures who recently leaked classified information about drone strikes and cyber warfare to the press that there would be any consequences for their actions. The all-too cozy relationship between the Obama administration and mainstream outlets like the New York Times instilled in them the notion that they could plant with impunity any story in the media to boost the president’s reputation. But the anger generated among the public and on both sides of the aisle in Congress by the constant stream of confidential information from the White House and the Pentagon to the front page of the Times has set in motion a series of events that may have consequences that will be felt long after the stories have run. Indeed, even if the president is re-elected, it may be that the effort to puff up his shaky reputation could sink a second term in scandal and prosecutions.

Of course, just how difficult things will get for some of the chatty members of the administration depends a great deal on the special prosecutors picked by Attorney General Eric Holder to investigate the leaks after a storm of criticism on the issue forced his hand. As the Times points out today in a story buried on page 20 of their Sunday edition (in contrast to the front page placement of the pieces generated by the leaks in question), prosecuting someone for disclosing classified information can be tricky. But if the two U.S. Attorneys chosen to work on this case are determined to nail someone for this crime, then the odds are some senior administration figures will be going down, even if they are not the ones doing the leaking. The question is whether the Scooter Libby rules will apply.

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The arrogance of power is such that it may never have occurred to the senior government figures who recently leaked classified information about drone strikes and cyber warfare to the press that there would be any consequences for their actions. The all-too cozy relationship between the Obama administration and mainstream outlets like the New York Times instilled in them the notion that they could plant with impunity any story in the media to boost the president’s reputation. But the anger generated among the public and on both sides of the aisle in Congress by the constant stream of confidential information from the White House and the Pentagon to the front page of the Times has set in motion a series of events that may have consequences that will be felt long after the stories have run. Indeed, even if the president is re-elected, it may be that the effort to puff up his shaky reputation could sink a second term in scandal and prosecutions.

Of course, just how difficult things will get for some of the chatty members of the administration depends a great deal on the special prosecutors picked by Attorney General Eric Holder to investigate the leaks after a storm of criticism on the issue forced his hand. As the Times points out today in a story buried on page 20 of their Sunday edition (in contrast to the front page placement of the pieces generated by the leaks in question), prosecuting someone for disclosing classified information can be tricky. But if the two U.S. Attorneys chosen to work on this case are determined to nail someone for this crime, then the odds are some senior administration figures will be going down, even if they are not the ones doing the leaking. The question is whether the Scooter Libby rules will apply.

It should be recalled that a few years ago Democrats and liberals were crying bloody murder about the leak of Valerie Plame’s status as a CIA operative by those in the Bush administration who were angry about the lies told by her husband, a former ambassador. The appearance of Plame’s name in a column written by the late Robert Novak set off a federal investigation led by Patrick J. Fitzgerald, who was given the full powers of the attorney general, allowing him not only to subpoena and then jail reporters who refused to divulge their sources but to ultimately decide to charge someone who actually did not commit the crime that launched the probe. Richard Armitage of the State Department was the one who dropped Plame’s name to Novak. But rather than fight an uphill battle to jail Armitage, Fitzgerald chose to crucify I. Lewis “Scooter” Libby Jr., Vice President Dick Cheney’s chief of staff, because his account of a conversation with Tim Russert differed from the recollection of the then host of “Meet the Press.”

The Libby prosecution was a political witch-hunt that did nothing to enhance security or prevent leaks, but it did provide liberals with a great deal of schadenfreude while allowing left-wing Bush administration critics to pose as defenders of national security.

That’s why the possibility that the Libby rules will be applied to some current denizens of the White House may well have some on the right salivating at the prospect of revenge. But conservatives who were rightly opposed to what happened to Scooter Libby should not be hoping for a repeat of the same unfair treatment he suffered.

Instead, what is needed now is what did not happen with the Plame investigation: a probe that will quickly ferret out the truth about the leaks and expose it to the light of day. It should be pointed out that while the motive for both the Plame story and the Obama defense leaks was politics, the two are really not comparable in terms of seriousness.

It was illegal to name a CIA officer in the manner that Plame’s identity was outed. but she was working at a desk in Langley, Virginia, not working undercover in enemy territory. By contrast, the leaks about drone attacks and especially cyber warfare research and decision-making go to the heart of America’s national security. Fitzgerald knew he could never send Armitage to jail for mentioning Plame, but that might be more of a possibility with the Obama administration leakers.

Yet the main outcome here to be desired is not so much the jailing of Obama’s deputies or the prosecution of journalists but the exposure of what they did. The real scandal here isn’t the possible violation of the 1917 Espionage Act, a law rarely enforced. It is that the president’s aides thought nothing of uncovering America’s secrets in order to let their friends in the press portray the president as a tough guy.

The administration will do everything in its power to ensure the truth doesn’t come out before November. But if Holder has appointed unscrupulous prosecutors in the Fitzgerald mold and they wind up spending the next four years fending off arbitrary prosecutions that will drag the administration’s name in the mud, they may wind up wishing the truth had come out in a timely manner.

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Don’t Let Door Hit You on Way Out, Pat

No sad farewell to Patrick Fitzgerald here. Nothing good the man did in his years as U.S. attorney in Chicago and assistant U.S. attorney in New York could ever make up for the appalling miscarriage of justice he perpetrated against Scooter Libby.

In case anyone has forgotten, Mr. F. went after Mr. Libby relentlessly, with what can only be described as a vengeance, as special prosecutor in the Valerie Plame case. NOT for “leaking” the lady’s name and status as a CIA covert “operative” to Robert Novak. Fitz couldn’t get Scooter for that because he knew perfectly well that the leak came from then-Deputy Secretary of State Richard Armitage. And because he knew perfectly well that he didn’t have a case to make on a violation of the Intelligence Identities Protection Act – which is why Armitage was never charged with anything.

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No sad farewell to Patrick Fitzgerald here. Nothing good the man did in his years as U.S. attorney in Chicago and assistant U.S. attorney in New York could ever make up for the appalling miscarriage of justice he perpetrated against Scooter Libby.

In case anyone has forgotten, Mr. F. went after Mr. Libby relentlessly, with what can only be described as a vengeance, as special prosecutor in the Valerie Plame case. NOT for “leaking” the lady’s name and status as a CIA covert “operative” to Robert Novak. Fitz couldn’t get Scooter for that because he knew perfectly well that the leak came from then-Deputy Secretary of State Richard Armitage. And because he knew perfectly well that he didn’t have a case to make on a violation of the Intelligence Identities Protection Act – which is why Armitage was never charged with anything.

But hey, a special prosecutor’s gotta do what a special prosecutor’s gotta do: indict someone for something. In this case, the anointed ham sandwich was Scooter Libby, indicted and then convicted for perjury and obstruction of justice — the “crime” of giving investigators an account of a conversation he’d had years earlier with Tim Russert that differed from Russert’s recollection.

Putting away Rod Blagojevich and a bunch of New York Mafiosi won’t make up for that. Nor will the conviction of the blind sheik.

So, as Mr. Fitzgerald goes off to a lucrative future in a fancy law firm, or even possibly to a status stint as FBI director, we should bid him goodbye and good riddance.

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Scooter Libby Has His Say

Quin Hillyer of the Washington Times provides essential reading: an interview with Scooter Libby — the first time Libby has gone on the record to discuss his conviction and President Bush’s refusal to grant him a complete pardon. It should be read in full to appreciate how ludicrous was the decision to prosecute and how shaky was the evidence that Libby intentionally lied about hearing Valerie Plame’s name from Tim Russert. The key graph:

Never mind that Mr. Russert’s own memory had proved flagrantly untrustworthy in a previous instance. Never mind that equally famous journalist Bob Woodward testified that his own notes of a near-simultaneous conversation with Mr. Libby indicated that Mr. Woodward might have said to Mr. Libby what Mr. Libby remembered being told by Mr. Russert — in other words, that the conversations easily and innocently could have become conflated in Mr. Libby’s mind. And never mind that Mr. Libby was never shown to have a motive for lying about his conversation with Mr. Russert.

When considered with another solidly reported piece on the topic, one is left mystified as to how he could have been convicted, let alone denied a pardon. In his masterful analysis, Stan Crock explains:

Even at the end of the long ordeal, poor memory — and irony — continued to played a role. Libby called White House counsel Fred Fielding as the clock was winding down on Bush’s term to ask if he could meet with the president to make his case for a pardon. Fielding mentioned he had received a call from a senator who had defended Libby. That surprised Libby, who knew the senator but had not considered him an ardent supporter. And Libby suggested it might have been another senator who Libby knew had spoken to Fielding.

Libby, who answered questions for this article, asked Fielding three times if he was sure it was the senator Fielding mentioned, and Fielding insisted that it was. But a little later, Fielding realized that he had made a mistake and that the senator Libby had mentioned was the one who had called. “Fred,” Libby said wryly, “you could be indicted.” The incident evidently didn’t convince Fielding that Libby may have made a similar memory error. Fielding didn’t return calls seeking comment.

After reading through these and contemporaneous accounts of the trial and investigation (and when we consider Patrick Fitzgerald’s overzealousness, revealed in his most recent trial flop), one cannot but agree that something went terribly wrong. Or, put more bluntly: “And to Fred Fielding, wherever you are: Shame, shame, shame!”

Quin Hillyer of the Washington Times provides essential reading: an interview with Scooter Libby — the first time Libby has gone on the record to discuss his conviction and President Bush’s refusal to grant him a complete pardon. It should be read in full to appreciate how ludicrous was the decision to prosecute and how shaky was the evidence that Libby intentionally lied about hearing Valerie Plame’s name from Tim Russert. The key graph:

Never mind that Mr. Russert’s own memory had proved flagrantly untrustworthy in a previous instance. Never mind that equally famous journalist Bob Woodward testified that his own notes of a near-simultaneous conversation with Mr. Libby indicated that Mr. Woodward might have said to Mr. Libby what Mr. Libby remembered being told by Mr. Russert — in other words, that the conversations easily and innocently could have become conflated in Mr. Libby’s mind. And never mind that Mr. Libby was never shown to have a motive for lying about his conversation with Mr. Russert.

When considered with another solidly reported piece on the topic, one is left mystified as to how he could have been convicted, let alone denied a pardon. In his masterful analysis, Stan Crock explains:

Even at the end of the long ordeal, poor memory — and irony — continued to played a role. Libby called White House counsel Fred Fielding as the clock was winding down on Bush’s term to ask if he could meet with the president to make his case for a pardon. Fielding mentioned he had received a call from a senator who had defended Libby. That surprised Libby, who knew the senator but had not considered him an ardent supporter. And Libby suggested it might have been another senator who Libby knew had spoken to Fielding.

Libby, who answered questions for this article, asked Fielding three times if he was sure it was the senator Fielding mentioned, and Fielding insisted that it was. But a little later, Fielding realized that he had made a mistake and that the senator Libby had mentioned was the one who had called. “Fred,” Libby said wryly, “you could be indicted.” The incident evidently didn’t convince Fielding that Libby may have made a similar memory error. Fielding didn’t return calls seeking comment.

After reading through these and contemporaneous accounts of the trial and investigation (and when we consider Patrick Fitzgerald’s overzealousness, revealed in his most recent trial flop), one cannot but agree that something went terribly wrong. Or, put more bluntly: “And to Fred Fielding, wherever you are: Shame, shame, shame!”

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Pack It Up, Inspector Javert

Not only witty conservative bloggers are calling for Patrick Fitzgerald to hang it up. In the wake of Blago’s largely hung jury, it has dawned on many more that the prosecutor is more persecutor and a menace to the justice system. The Wall Street Journal reminds us of Fitzgerald’s presser two years ago:

Then, the U.S. Attorney spoke of “what we can only describe as a political corruption crime spree” and accused Blagojevich of “the most appalling conduct” that would have “Lincoln roll over in his grave.” It was “a truly new low,” Mr. Fitzgerald told the world. … As the former Justice Department lawyer Victoria Toensing noted in these pages at the time, Mr. Fitzgerald violated prosecutorial ethics by speaking “beyond the four corners of the complaint,” to use the criminal law vernacular for the facts at issue, thus possibly tainting the jury pool.

As the WSJ editors point out, this is not an isolated occurrence. There is a pattern at work here — smear and intimidate, throw whatever charges you can at the vilified defendant, and see what the jury will buy:

At a 2005 press conference, Mr. Fitzgerald implied that Mr. Libby had obstructed his investigation into who leaked the former CIA analyst’s name, even though he knew from the start that the real “leaker” was Richard Armitage.

Then there was the railroading of Conrad Black, the conservative newspaper baron who was convicted in 2007 using the infinitely malleable “honest services” fraud law. The Supreme Court junked much of that law earlier this year, leading to Mr. Black’s release from prison. The jury had earlier dismissed nine of the 13 charges Mr. Fitzgerald filed.

Fitzgerald is lacking in the very qualities we must demand of prosecutors: discretion and restraint. The Washington Post editors recognize this in their well-taken objection to Blago’s retrial:

Mr. Fitzgerald is entitled under the law to drag the ex-governor back into court. He has the resources to do so and the motivation: The Blagojevich brand of politics is repugnant, beyond any doubt. It perverts democracy and puts moneyed interests over the common good. But the prosecutor took his shot and lost. He should stand down before crossing another fine line — the one that separates prosecution from persecution.

Because Fitzgerald can’t or won’t recognize the difference between the two, it’s time for him to pack it in, albeit much too late for Scooter Libby and Conrad Black. One final thought: had the extent of Fitzgerald’s abuse of power been clear at the time, would President Bush have withheld a full pardon from Libby? We don’t know, but all this is further evidence of the need to rethink the notion of “special prosecutors,” who by definition are freed from the restraints that prevent ordinary prosecutors from running amok and abusing their power.

Not only witty conservative bloggers are calling for Patrick Fitzgerald to hang it up. In the wake of Blago’s largely hung jury, it has dawned on many more that the prosecutor is more persecutor and a menace to the justice system. The Wall Street Journal reminds us of Fitzgerald’s presser two years ago:

Then, the U.S. Attorney spoke of “what we can only describe as a political corruption crime spree” and accused Blagojevich of “the most appalling conduct” that would have “Lincoln roll over in his grave.” It was “a truly new low,” Mr. Fitzgerald told the world. … As the former Justice Department lawyer Victoria Toensing noted in these pages at the time, Mr. Fitzgerald violated prosecutorial ethics by speaking “beyond the four corners of the complaint,” to use the criminal law vernacular for the facts at issue, thus possibly tainting the jury pool.

As the WSJ editors point out, this is not an isolated occurrence. There is a pattern at work here — smear and intimidate, throw whatever charges you can at the vilified defendant, and see what the jury will buy:

At a 2005 press conference, Mr. Fitzgerald implied that Mr. Libby had obstructed his investigation into who leaked the former CIA analyst’s name, even though he knew from the start that the real “leaker” was Richard Armitage.

Then there was the railroading of Conrad Black, the conservative newspaper baron who was convicted in 2007 using the infinitely malleable “honest services” fraud law. The Supreme Court junked much of that law earlier this year, leading to Mr. Black’s release from prison. The jury had earlier dismissed nine of the 13 charges Mr. Fitzgerald filed.

Fitzgerald is lacking in the very qualities we must demand of prosecutors: discretion and restraint. The Washington Post editors recognize this in their well-taken objection to Blago’s retrial:

Mr. Fitzgerald is entitled under the law to drag the ex-governor back into court. He has the resources to do so and the motivation: The Blagojevich brand of politics is repugnant, beyond any doubt. It perverts democracy and puts moneyed interests over the common good. But the prosecutor took his shot and lost. He should stand down before crossing another fine line — the one that separates prosecution from persecution.

Because Fitzgerald can’t or won’t recognize the difference between the two, it’s time for him to pack it in, albeit much too late for Scooter Libby and Conrad Black. One final thought: had the extent of Fitzgerald’s abuse of power been clear at the time, would President Bush have withheld a full pardon from Libby? We don’t know, but all this is further evidence of the need to rethink the notion of “special prosecutors,” who by definition are freed from the restraints that prevent ordinary prosecutors from running amok and abusing their power.

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Re: The Hackiest Hack of All

I heartily concur with Daniel: McClellan was probably the worst White House press secretary in recent memory. His infamous deer-in-the-headlights look, an inability to engage or respond effectively to the White House press corps, and a generally inept demeanor were the subject of much ridicule at the time–mainly by the press itself. To write of the Bush administration that “they were all evil” or “they all lied” smacks of excuse-mongering. The height of this is when he declares that the press was too “deferential.” When–while they were pummeling him on national TV? Why didn’t he quit if all his colleagues were liars and fools? He didn’t voice any reservations at the time, while cashing his paycheck and defending the President to the media pack everyday. Was he lying then? Or is this some kind of recovered memory?

Then there is his accusation based on no factual evidence that Karl Rove and Scooter Libby were obstructing justice during the Valerie Plume investigation:

“I have no idea what they discussed, but it seemed suspicious for these two, whom I had never noticed spending any one-on-one time together, to go behind closed doors and visit privately. … I don’t know what they discussed, but what would any knowledgeable person reasonably and logically conclude was the topic? Like the whole truth of people’s involvement, we will likely never know with any degree of confidence.”

One wonders how an unsubstantiated rumor like that gets through the editing process or whether it is indicative of the rest of the “evidence” used in this catty tell-all.

Finally, McClellan seems appalled that there was a “propaganda” effort to sell the war. I assume that he is not a total naif and that he did not spend his entire adult career in press relations only now to learn that selling,–i.e., encouraging the public to support your position–is the central facet of his job. If he didn’t get the facts or the facts were wrong or unkown people, from unknowable meetings, lied that is another matter. But throwing around the word “propaganda” is the type of thing people do to sell books and get splashy coverage from the media. (That would be the same media that vilified him for incompetence.) There’s plenty of insightful criticism of the Iraq war’s mismanagement and plenty to learn. It won’t, however, come from this shabby effort.

I heartily concur with Daniel: McClellan was probably the worst White House press secretary in recent memory. His infamous deer-in-the-headlights look, an inability to engage or respond effectively to the White House press corps, and a generally inept demeanor were the subject of much ridicule at the time–mainly by the press itself. To write of the Bush administration that “they were all evil” or “they all lied” smacks of excuse-mongering. The height of this is when he declares that the press was too “deferential.” When–while they were pummeling him on national TV? Why didn’t he quit if all his colleagues were liars and fools? He didn’t voice any reservations at the time, while cashing his paycheck and defending the President to the media pack everyday. Was he lying then? Or is this some kind of recovered memory?

Then there is his accusation based on no factual evidence that Karl Rove and Scooter Libby were obstructing justice during the Valerie Plume investigation:

“I have no idea what they discussed, but it seemed suspicious for these two, whom I had never noticed spending any one-on-one time together, to go behind closed doors and visit privately. … I don’t know what they discussed, but what would any knowledgeable person reasonably and logically conclude was the topic? Like the whole truth of people’s involvement, we will likely never know with any degree of confidence.”

One wonders how an unsubstantiated rumor like that gets through the editing process or whether it is indicative of the rest of the “evidence” used in this catty tell-all.

Finally, McClellan seems appalled that there was a “propaganda” effort to sell the war. I assume that he is not a total naif and that he did not spend his entire adult career in press relations only now to learn that selling,–i.e., encouraging the public to support your position–is the central facet of his job. If he didn’t get the facts or the facts were wrong or unkown people, from unknowable meetings, lied that is another matter. But throwing around the word “propaganda” is the type of thing people do to sell books and get splashy coverage from the media. (That would be the same media that vilified him for incompetence.) There’s plenty of insightful criticism of the Iraq war’s mismanagement and plenty to learn. It won’t, however, come from this shabby effort.

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The Plame Game

Valerie Plame Wilson’s Fair Game is out, complete with lots of blacked-out spots thanks to CIA concerns about the publication of classified information. Thus, in describing how she tended to her twins while holding down her job as an undercover operative, she has passages like this:

It felt a little like feeding a baby bird. Switching between breast and syringe feedings when they took only a few ounces each time and capturing each detail in a notebook soon took its toll. I was exhausted. XXXXXX XXX XXXXX XXXXXX XXXXXXX XXXXXX. Every baby book out there recommends that the mother sleep when the baby sleeps.

She sketches quite a bit of nature, too, but Turgenev she is not.

It was the best time: early evening, the furnace blast from the summer day over, the jasmine just opening to perfume the air, and sunset still streaking the sky pink and orange.

She is candid about many things, including the “relevant life experience” that made her suitable for work as a CIA operative recruiting agents and would-be terrorists:

As a Pi Beta Phi sorority sister at Penn State, I had lived through the frenzied “rush” weeks, and once I’d been accepted by the sorority, I attended many a crowded party where fitting in and exchanging easy banter with others was key to social success. Now, I smiled to myself, envisioning the room as nothing more than another fraternity/sorority party, I dove in, trying to find my target.

This kind of thing, and there is a great deal of it in the book, does not exactly make her come across as a Mata Hari.

She discusses at length the famously controversial sixteen words in President Bush’s State of the Union Address: “the British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa,” which prompted her husband, Joseph Wilson, to write an op-ed denouncing the Bush administration for cooking intelligence about Iraqi weapons of mass destruction while building the case for war. But she is either being evasive about how these sixteen words ended up in the President’s speech, or her explanation has been removed by the CIA censors. It does not matter; responsibility for the blunder has already been unequivocally accepted by George Tenet, the CIA’s then-director.

To her credit, Plame is honest in sketching the broader picture of how the U.S. came to believe that Iraq was vigorously pursuing WMD’s. Although she does point to what she regards as pressure from the White House on the agency to adjust its intelligence to fit policy—principally by means of visits to CIA headquarters by Dick Cheney and Scooter Libby to engage in direct talks with analysts—she sticks with the evidence that is by now solidly established, namely, that Langley itself must shoulder the lion’s share of the blame:

The crime and the colossal failure of the intelligence community—and the CIA in particular—was that . . .deep disagreements [about Iraqi WMD programs] were relegated to footnotes in tiny type at the bottom of the National Intelligence Estimate (NIE). The NIE was hastily ordered by Congress in October 2002 (just prior to the vote to authorize use of force against Iraq) and pulled together by the CIA in an unprecedented few weeks. Even more damning is the intellectual sloppiness of a document known as the “President’s Summary,” which distills the NIE down to one page. . . The CIA failed to demonstrate convincingly to the administration that there was a serious and sustained debate over this issue [the aluminum tubes thought erroneously to be for nuclear purposes].

I haven’t yet finished reading this heavily padded (even as it is heavily redacted) book, but so far, given how much it reveals about the peculiar and dysfunctional culture of the CIA, it is more engaging than I expected.

Valerie Plame Wilson’s Fair Game is out, complete with lots of blacked-out spots thanks to CIA concerns about the publication of classified information. Thus, in describing how she tended to her twins while holding down her job as an undercover operative, she has passages like this:

It felt a little like feeding a baby bird. Switching between breast and syringe feedings when they took only a few ounces each time and capturing each detail in a notebook soon took its toll. I was exhausted. XXXXXX XXX XXXXX XXXXXX XXXXXXX XXXXXX. Every baby book out there recommends that the mother sleep when the baby sleeps.

She sketches quite a bit of nature, too, but Turgenev she is not.

It was the best time: early evening, the furnace blast from the summer day over, the jasmine just opening to perfume the air, and sunset still streaking the sky pink and orange.

She is candid about many things, including the “relevant life experience” that made her suitable for work as a CIA operative recruiting agents and would-be terrorists:

As a Pi Beta Phi sorority sister at Penn State, I had lived through the frenzied “rush” weeks, and once I’d been accepted by the sorority, I attended many a crowded party where fitting in and exchanging easy banter with others was key to social success. Now, I smiled to myself, envisioning the room as nothing more than another fraternity/sorority party, I dove in, trying to find my target.

This kind of thing, and there is a great deal of it in the book, does not exactly make her come across as a Mata Hari.

She discusses at length the famously controversial sixteen words in President Bush’s State of the Union Address: “the British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa,” which prompted her husband, Joseph Wilson, to write an op-ed denouncing the Bush administration for cooking intelligence about Iraqi weapons of mass destruction while building the case for war. But she is either being evasive about how these sixteen words ended up in the President’s speech, or her explanation has been removed by the CIA censors. It does not matter; responsibility for the blunder has already been unequivocally accepted by George Tenet, the CIA’s then-director.

To her credit, Plame is honest in sketching the broader picture of how the U.S. came to believe that Iraq was vigorously pursuing WMD’s. Although she does point to what she regards as pressure from the White House on the agency to adjust its intelligence to fit policy—principally by means of visits to CIA headquarters by Dick Cheney and Scooter Libby to engage in direct talks with analysts—she sticks with the evidence that is by now solidly established, namely, that Langley itself must shoulder the lion’s share of the blame:

The crime and the colossal failure of the intelligence community—and the CIA in particular—was that . . .deep disagreements [about Iraqi WMD programs] were relegated to footnotes in tiny type at the bottom of the National Intelligence Estimate (NIE). The NIE was hastily ordered by Congress in October 2002 (just prior to the vote to authorize use of force against Iraq) and pulled together by the CIA in an unprecedented few weeks. Even more damning is the intellectual sloppiness of a document known as the “President’s Summary,” which distills the NIE down to one page. . . The CIA failed to demonstrate convincingly to the administration that there was a serious and sustained debate over this issue [the aluminum tubes thought erroneously to be for nuclear purposes].

I haven’t yet finished reading this heavily padded (even as it is heavily redacted) book, but so far, given how much it reveals about the peculiar and dysfunctional culture of the CIA, it is more engaging than I expected.

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Was Scooter’s Sentence Too Light?

Judge Reggie Walton has sentenced Scooter Libby to 2 1/2 years in prison. In calculating this term, Walton relied on federal guidelines, which give him latitude. He also weighed letters, pro and con, written to the court by dozens of people. Many of them are friends of Libby, some of them are individuals who had encountered Libby in the course of their lives, and others are ordinary citizens. Almost all of the letters call for Walton to show leniency. A handful, going in the other direction, call for throwing the book at Libby. Those are the ones the judge chose to follow.

The letters in favor of leniency stress Libby’s long and distinguished career in public service, his dedication and goodwill toward subordinates and colleagues, his love of children. Some of these letters are self-aggrandizing. But most of them are poignant portraits of sides of Libby that the public has never seen. That is especially true of those written by low-level employees, like the chief steward on Air Force Two and a White House photographer, both of whom emphasize the simple human kindness that the Vice President’s chief of staff showed to them.

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Judge Reggie Walton has sentenced Scooter Libby to 2 1/2 years in prison. In calculating this term, Walton relied on federal guidelines, which give him latitude. He also weighed letters, pro and con, written to the court by dozens of people. Many of them are friends of Libby, some of them are individuals who had encountered Libby in the course of their lives, and others are ordinary citizens. Almost all of the letters call for Walton to show leniency. A handful, going in the other direction, call for throwing the book at Libby. Those are the ones the judge chose to follow.

The letters in favor of leniency stress Libby’s long and distinguished career in public service, his dedication and goodwill toward subordinates and colleagues, his love of children. Some of these letters are self-aggrandizing. But most of them are poignant portraits of sides of Libby that the public has never seen. That is especially true of those written by low-level employees, like the chief steward on Air Force Two and a White House photographer, both of whom emphasize the simple human kindness that the Vice President’s chief of staff showed to them.

The letters calling for a harsh prison sentence are something else again. One such correspondent writes: “I would prefer to see Mr. Rove or Vice President Cheney behind bars so, in a sense, Mr. Libby is their proxy. He was the puppet but they pulled the strings.” The writer signs his missive, “an angry citizen,” but declines to provide his name, saying of the Bush administration, “I don’t use my name because I don’t trust them, either.”

Another such letter, handwritten and signed with a scrawl, reads: “I strongly implore you to putScooter’ in jail”—underlining those three italicized words. Yet another correspondent writes that Libby “has committed some of the most serious offense against our country in its entire 231 year history. . . . I believe he is also guilty of, although he hasn’t been tried for, helping the enemies of the United States, Osama bin Laden and al Qaeda Afghanistan/Pakistan escape justice through his lies.” A former federal prosecutor goes even further: “In its ultimate effects on the security of the United States, is what was done here [by Libby] really that different from what was done by [convicted spies] Aldrich Ames, Jonathan Pollard, and Robert Hanssen?”

Although nicely printed, and not drawn in a scrawl, a New York Times editorial today joins with the ranters, calling Libby’s sentence “an appropriate—indeed necessary—punishment for his repeated lies to a grand jury and to FBI agents investigating a possible smear campaign orchestrated by the White House.” Considering that the Times itself has trampled on U.S. laws governing secrecy—something that Libby has never been accused of by a court of law—the newspaper’s participation in this chorus of half-witted haters, though not unexpected, is all the more revolting.

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Ball Three

What is the Scooter Libby trial really about?

In announcing the indictment of the vice-presidential aide in October 2005, the special prosecutor Patrick Fitzgerald attempted to make it all perfectly clear, using a baseball analogy:

If you saw a baseball game and you saw a pitcher wind up and throw a fast ball and hit a batter right smack in the head and it really, really hurt them, you’d want to know why the pitcher did that. And you’d wonder whether or not the person just reared back and decided, “I’ve got bad blood with this batter, he hit two home runs off me, I’m just going to hit him in the head as hard as I can.”

You also might wonder whether or not the pitcher just let go of the ball, or his foot slipped, and he had no idea to throw the ball anywhere near the batter’s head. And there’s a lots of shades of gray in between. You might learn that you wanted to hit the batter in the back, it hit him in the head because he moved; you might want to throw it under his chin but ended up hitting on the head.

And what you’d want to do is have as much information as you could. You’d want to know what happened in the dugout. Was this guy complaining about the person he threw at? Did he talk to anyone else? What was he thinking? How does he react? All those things you’d want to know. And then you’d make a decision as to whether this person should be banned from baseball, whether he should be suspended, whether you should do nothing at all and just say, “Hey, the person threw a bad pitch; get over it.”

After nearly a week of testimony the case is not much clearer than this botched analogy, the forensic equivalent of a “wardrobe malfunction.”

The Washington Post described Judith Miller’s testimony yesterday as “potentially damaging” to Libby. And this is surely accurate if one focuses on the word “potentially.” But her testimony was also even more potentially helpful to the defense.

Libby’s lawyers are expected to maintain that his “false” statements to the FBI and to a grand jury were the product of a faulty memory. So far, a number of prosecution witnesses have given testimony that differs significantly from what Libby told FBI investigators and the grand jury. But more importantly they have been shown to have strikingly deficient memories themselves.

Judith Miller had 85 days in the Alexandria jail in which to refresh her recollections about the sequence of events that brought her there. But no sooner was she released and brought before the grand jury, than she was compelled to acknowledge that she had entirely forgotten a critical meeting with Libby in June of 2003. If she could forget such a vital detail, will the jury convict Libby for lying, when the possibility that he simply forgot has been powerfully sketched by Miller and others in the witness parade?

It is possible that Scooter Libby is lying through his catcher’s mask. But my bet is that, if the jury takes seriously the meaning of the words “reasonable doubt,” Patrick Fitzgerald will have been judged to have pitched four balls, and Scooter, now up at bat, will get to walk.

To see key exhibits in the Scooter Libby case, click here.

To see key exhibits in the Baseball Hall of Fame, click here.

What is the Scooter Libby trial really about?

In announcing the indictment of the vice-presidential aide in October 2005, the special prosecutor Patrick Fitzgerald attempted to make it all perfectly clear, using a baseball analogy:

If you saw a baseball game and you saw a pitcher wind up and throw a fast ball and hit a batter right smack in the head and it really, really hurt them, you’d want to know why the pitcher did that. And you’d wonder whether or not the person just reared back and decided, “I’ve got bad blood with this batter, he hit two home runs off me, I’m just going to hit him in the head as hard as I can.”

You also might wonder whether or not the pitcher just let go of the ball, or his foot slipped, and he had no idea to throw the ball anywhere near the batter’s head. And there’s a lots of shades of gray in between. You might learn that you wanted to hit the batter in the back, it hit him in the head because he moved; you might want to throw it under his chin but ended up hitting on the head.

And what you’d want to do is have as much information as you could. You’d want to know what happened in the dugout. Was this guy complaining about the person he threw at? Did he talk to anyone else? What was he thinking? How does he react? All those things you’d want to know. And then you’d make a decision as to whether this person should be banned from baseball, whether he should be suspended, whether you should do nothing at all and just say, “Hey, the person threw a bad pitch; get over it.”

After nearly a week of testimony the case is not much clearer than this botched analogy, the forensic equivalent of a “wardrobe malfunction.”

The Washington Post described Judith Miller’s testimony yesterday as “potentially damaging” to Libby. And this is surely accurate if one focuses on the word “potentially.” But her testimony was also even more potentially helpful to the defense.

Libby’s lawyers are expected to maintain that his “false” statements to the FBI and to a grand jury were the product of a faulty memory. So far, a number of prosecution witnesses have given testimony that differs significantly from what Libby told FBI investigators and the grand jury. But more importantly they have been shown to have strikingly deficient memories themselves.

Judith Miller had 85 days in the Alexandria jail in which to refresh her recollections about the sequence of events that brought her there. But no sooner was she released and brought before the grand jury, than she was compelled to acknowledge that she had entirely forgotten a critical meeting with Libby in June of 2003. If she could forget such a vital detail, will the jury convict Libby for lying, when the possibility that he simply forgot has been powerfully sketched by Miller and others in the witness parade?

It is possible that Scooter Libby is lying through his catcher’s mask. But my bet is that, if the jury takes seriously the meaning of the words “reasonable doubt,” Patrick Fitzgerald will have been judged to have pitched four balls, and Scooter, now up at bat, will get to walk.

To see key exhibits in the Scooter Libby case, click here.

To see key exhibits in the Baseball Hall of Fame, click here.

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Law and Order

Did Scooter Libby write a letter to New York Times reporter Judith Miller in prison containing a coded hint that she should back up his story in court? So asks New York Times reporter Neil Lewis, referring to a curious passage in a missive Libby mailed to Miller in September 2005, ostensibly releasing her from her pledge not to reveal him as her source for the identity of CIA operative Valery Plame Wilson, but possibly suggesting something else entirely. “Out West, where you vacation, the aspens will already be turning. They turn in clusters because their roots connect them,” Libby wrote.

Asks Lewis: “Was that phrase a simple attempt at a literary turn? Or was it a veiled plea for Ms. Miller to ‘turn’ with him and back up Mr. Libby’s account that he had not disclosed Ms. Wilson’s identity to her?”

The trial of Scooter Libby on perjury and obstruction-of-justice charges, now entering its second week, may not clear up the mystery of the clustered Aspens, if it is a mystery at all. And it may not clear up the new mystery, raised yesterday by Libby’s crack defense team, of whether their client was being sacrificed by White House operatives to protect Karl Rove. But the investigation of Libby and the Plame leak has gone a considerable distance toward resolving another conundrum that has bedeviled our legal system for decades: namely, whether newsmen are above the law. When the Supreme Court refused to hear Judith Miller’s appeal of her imprisonment on contempt charges, it stood by its own precedent set in 1972 in Branzburg v. Hayes that journalists, like all other citizens, are obliged to testify before grand juries regarding potentially criminal activities, including the criminal activities of their confidential sources. The “public . . . has a right to every man’s evidence,” ruled the Court.

A coalition of First Amendment activists and journalism associations is now lobbying Congress to overturn the Supreme Court’s decision by passing legislation that would create a “reporter’s privilege.” With the Democrats in power in Congress, the prospects for success are now better than they have been for a generation. But at a moment when the country is facing mortal threats from Islamic fanatics and the press has been publishing counterterrorism secrets with reckless abandon, we need a reporter’s privilege as badly as the New York Times needs another Jayson Blair. As I argue in the February issue of COMMENTARY, such a law would manage to damage our national security and do violence to the First Amendment in a single swoop.

To help defray the considerable costs of defending Scooter Libby, send a check payable to:

Libby Legal Defense Trust
2100 M Street, NW Suite 170-362
Washington, DC 20037-1233

To help defray the even more considerable costs of prosecuting Scooter Libby, send a check payable to:

Gifts to the United States
U.S. Department of the Treasury
Credit Accounting Branch
3700 East-West Highway, Room 6D37
Hyattsville, MD 20782

Did Scooter Libby write a letter to New York Times reporter Judith Miller in prison containing a coded hint that she should back up his story in court? So asks New York Times reporter Neil Lewis, referring to a curious passage in a missive Libby mailed to Miller in September 2005, ostensibly releasing her from her pledge not to reveal him as her source for the identity of CIA operative Valery Plame Wilson, but possibly suggesting something else entirely. “Out West, where you vacation, the aspens will already be turning. They turn in clusters because their roots connect them,” Libby wrote.

Asks Lewis: “Was that phrase a simple attempt at a literary turn? Or was it a veiled plea for Ms. Miller to ‘turn’ with him and back up Mr. Libby’s account that he had not disclosed Ms. Wilson’s identity to her?”

The trial of Scooter Libby on perjury and obstruction-of-justice charges, now entering its second week, may not clear up the mystery of the clustered Aspens, if it is a mystery at all. And it may not clear up the new mystery, raised yesterday by Libby’s crack defense team, of whether their client was being sacrificed by White House operatives to protect Karl Rove. But the investigation of Libby and the Plame leak has gone a considerable distance toward resolving another conundrum that has bedeviled our legal system for decades: namely, whether newsmen are above the law. When the Supreme Court refused to hear Judith Miller’s appeal of her imprisonment on contempt charges, it stood by its own precedent set in 1972 in Branzburg v. Hayes that journalists, like all other citizens, are obliged to testify before grand juries regarding potentially criminal activities, including the criminal activities of their confidential sources. The “public . . . has a right to every man’s evidence,” ruled the Court.

A coalition of First Amendment activists and journalism associations is now lobbying Congress to overturn the Supreme Court’s decision by passing legislation that would create a “reporter’s privilege.” With the Democrats in power in Congress, the prospects for success are now better than they have been for a generation. But at a moment when the country is facing mortal threats from Islamic fanatics and the press has been publishing counterterrorism secrets with reckless abandon, we need a reporter’s privilege as badly as the New York Times needs another Jayson Blair. As I argue in the February issue of COMMENTARY, such a law would manage to damage our national security and do violence to the First Amendment in a single swoop.

To help defray the considerable costs of defending Scooter Libby, send a check payable to:

Libby Legal Defense Trust
2100 M Street, NW Suite 170-362
Washington, DC 20037-1233

To help defray the even more considerable costs of prosecuting Scooter Libby, send a check payable to:

Gifts to the United States
U.S. Department of the Treasury
Credit Accounting Branch
3700 East-West Highway, Room 6D37
Hyattsville, MD 20782

Read Less