« Scooter Libby's civil liberties | Main | a brief history of community engagement in education »

March 8, 2007

Libby and the First Amendment (continued)

I suppose the most favorable summary of the Libby prosecution would go like this:

(1) The Covert Agent Identity Protection Act is narrowly tailored and not a threat to legitimate whistleblowers.

(2) Nevertheless, there were plausible reasons to suspect that members of the Bush Administration had violated the Act by releasing Valerie Plame's name. Hence an investigation was appropriate.

(3) A serious investigation required official FBI interviews, subpoenas, and testimony under oath.

(4) In the course of his interviews and testimony, I. Lewis ("Scooter") Libby lied, thereby committing felonies that had to be prosecuted.

In my view, this four-part argument must be weighed against the precedent-setting interference in personal liberties that (3) implies. To be hauled in front of a grand jury and required to testify is an expansion of governmental power, and it will not be limited to the Plame case, nor to the Bush Administration. One can easily imagine pacifist whistleblowers triggering the same process.

Much depends on whether (2) is valid. And that seems a close call. If the Act truly has limited scope, then perhaps it was pretty obvious that no one had violated it. Then no investigation was necessary (and civil libertarians, despite our abhorrence of the Bush Administration, should have opposed the appointment of a Special Prosecutor). If the Act is pretty broad, then I'm not sure I like it, because it could sweep up courageous whistleblowers as well as Cheney staffers.

March 8, 2007 10:41 AM | category: none


Dr. Levine,

I don't ever remember disagreeing with a position you have take on this blog before, but on this issue, I cannot disagree with you more. There is no way that first amendment rights are the most important thing at issue here... well, before I go on and on, let me just throw in this link to what I wrote over at my place. I find the position you take, as I understand it anyway, to be very troubling, as I think the real threat to Civil Liberties is the coalition of two powerful groups against regular people. If that is what is happening here, how can the first amendment trump actual harm caused by the powerful in exchange for access to information? That's not free speech, there's nothing free about it. And, in my view, there's nothing liberal about trading criminal negligence for a scoop.

March 8, 2007 6:26 PM | Comments (3) | posted by Steven Maloney

I think you have presented the argument very well. Two quick points: (1) this is a discussion that should have been conducted at the creation of the investigation or at least when Libby was indicted and (2) this is a similar argument being made by Bill O'Reilly (strange bedfellows, eh?)

Also, I find the whistleblowing framework somewhat incongruent in this case. The leaked information appears to have been coordinated to support--not undermine--the administration's official positions. If anything, Wilson was the whistleblower not Libby!


March 8, 2007 7:07 PM | Comments (3) | posted by Michael Weiksner

In my view, this four-part argument must be weighed against the precedent-setting interference in personal liberties that (3) implies.

I don't find this view at all persuasive. Sworn testimony to a grand jury under subpoena is hardly new, and grand jury testimony is secret precisely to protect personal liberty in the face of compelled testimony.

If we are going to have laws at all, we must have a mechanism to enforce those laws, and to determine if, in fact, laws have been broken, which implies a duty to cooperate with law enforcement.

We might have an issue if Libby had been providing information on actual government wrongdoing. If so, however, it seems probable that he would have been protected against legal consequence by 5 U.S.C. § 1221(e).

I don't think there's an absolutist answer to this issue: Grand jury testimony in general entails that all sorts of different rights come into competition. One might have an opinion about how this balance might be tweaked, but I don't see that it's at all realistic to just put a rock on the "free speech" side of the scale.

March 11, 2007 11:23 AM | Comments (3) | posted by The Barefoot Bum

Site Meter