Saturday, October 29, 2005

Secrets and Lies

There are other blogs offering comprehensive analysis of the case culminating in Friday's indictment of senior White House aide Lewis Libby for lying, so we refer you to Larry Johnson at TPM Cafe and, less seriously, Fafblog. Just a few comments about the case here. First, we'll note for the record these elements of a Wall Street Journal (subs. req'd) profile of the special prosecutor, Patrick Fitzgerald:

The son of Irish immigrants and the third of four children, Mr. Fitzgerald grew up in a middle-class family in Brooklyn. His father was a doorman in Manhattan. He attended Regis High School, an all-scholarship Jesuit school in Manhattan, where he was a member of the debate team and is remembered by fellow students as pretty quiet. To earn extra money during school, he worked as a janitor and a doorman. He studied economics and math at Amherst College in Massachusetts and graduated Harvard Law School in 1985. During this time, he took up rugby, a sport he continued to play for years after graduation.

The article also notes his tendency as a prosecutor to go for simple charges in complicated cases. This is important because it confounded the typical Republican noise machine strategy of making the simple things seem complicated (cutting tax rates cuts tax revenue ... but no, what about X, Y, and Z?, where X, Y, and Z are total shite).

Anyway, the 101st Fighting Keyboarders expended enormous effort arguing that Fitz (as we'll call him from here on) couldn't bring a case on the leak of Valerie Plame's CIA identity under the 1982 Intelligence Identities Protection Act. But Friday's news conference by Fitz made clear that to the extent that he was thinking about building a criminal case around the leak, he was looking instead at the much broader Espionage Act of 1917. In the end he didn't go for it, at least not yet, depriving us of the irony of a government that has used a declared War on Terror to massively expand executive power being done in by a previous wartime expansion of that same power. Fitz's discussion of why this use of the Act is controversial is helpful:

And all I'll say is that if national defense information which is involved because her affiliation with the CIA, whether or not she was covert, was classified, if that was intentionally transmitted, that would violate the statute known as Section 793, which is the Espionage Act.

That is a difficult statute to interpret. It's a statute you ought to carefully apply. I think there are people out there who would argue that you would never use that to prosecute the transmission of classified information, because they think that would convert that statute into what is in England the Official Secrets Act.

Let me back up. The average American may not appreciate that there's no law that's specifically just says, "If you give classified information to somebody else, it is a crime." There may be an Official Secrets Act in England. There are some narrow statutes, and there is this one statute that has some flexibility in it.

So there are people who should argue that you should never use that statute because it would become like the Official Secrets Act. I don't buy that theory, but I do know you should be very careful in applying that law because there are a lot of interests that could be implicated in making sure that you picked the right case to charge that statute.

Which sounds like he thinks that technically he could have charged Libby under the Espionage Act, but didn't think that he had sufficiently solid precedent for doing so. Thus making nonsense of Bill Kristol's claim that the recent troubles of conservatives in high office reflects selective prosecution based on laws more honoured in the breach than in the observance.

Finally, mention of the Official Secrets Act brings to mind that a significant piece of the Plame puzzle resides in London. Specifically, the ferocious reaction of the White House to Joe Wilson's contesting of their Niger uranium claim suggests that he had debunked their only evidence for it. Yet the UK Butler report claimed that there was other evidence for the claim, evidence not solely reliant on the forged Italian documents that neocon pundit Michael Ledeen expedited to the White House. Of course, this "other evidence" has remained secret, protected from any leak to enterprising journalists by the aforementioned Act.

Thus somewhere in there is another irony; that of a White House protected from its recklessness by a law that is not enforced in the USA while a similar law is enforced in the UK. If the Espionage Act was enforced to its letter, Libby would be in bigger trouble than he is already -- and probably Rove too. If the Official Secrets Act was not enforced to its letter, the supposed other evidence for the Niger claim would have leaked by now.

As Fitz seemed to imply, there are limited remedies that he has a prosecutor has to offer the public, and some things will just have to be settled in the political sphere. So to move this along, isn't it time for the UK Opposition to start putting on the heat on Blair to reveal just what this other evidence for the Niger claim actually is?

No comments: