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March 7, 2007

Scooter Libby's civil liberties

Before you read this post, you have to say the title 10 times fast.

Seriously, as a civil libertarian, I find the prosecution of Libby troubling. The whole case started with allegations that members of the administration had leaked true information to reporters. That was an act of speech that involved the press, thus implicating two clauses of the First Amendment. Our first instinct should be to protect such expression.

To be sure, Congress may forbid federal employees from leaking secrets--as in espionage cases. But not every statute that is constitutional is also welcome or wise. This one clearly constrains freedom of speech and the free flow of information, and we should ask whether the price is worth paying.

I am not defending the particular leak that began this case. It supported atrocious behavior: the launch of a disastrous and unnecessary war. I was under the impression, however, that in a free society, the law is blind to the merits and demerits of speech. Moral judgments about expression are to be separated from legal judgments.

Daniel Ellsberg calls the leaking of Plame's identity, "a very bad leak," whereas his unauthorized release of the Pentagon Papers was heroic because it helped to end the Vietnam War. But both were acts of speech that could be called "whistleblowing." We should be careful that by criminalizing some leaks, we don't criminalize them all.

For example, according to Raymond Bonner in the New York Review of Books, a blond American woman was present in several foreign countries when individuals who had been transported there by the CIA were tortured. I would rejoice if a whistleblower revealed this woman's identity so that she could be investigated by Congress and the press and we could explore our government's responsibility for the torture. But if she is a government agent, then revealing her name would violate the same statute at issue in the Libby case.

Libby was not charged with leaking Plame's name. He was charged with lying to government investigators and a grand jury as part of an investigation of the Plame leak. I will not condone lying, especially under oath. But it is always an expansion of governmental power when someone is forced to talk about Allegation X, for which he is never charged, and then indicted for lying to the police. This is a net that could catch a lot of innocent people.

The leak of Plame's identity allegedly caused her material harm by ending her career as an undercover agent. The remedy for such damages would seem to be a civil lawsuit. Indeed, Plame and her husband have sued Cheney, Rove, and Libby. That seems perfectly appropriate to me, and if their suit succeeds on the merits, I hope the damages are steep. But a civil lawsuit is entirely different from a criminal prosecution.

Finally, I am relieved to read that the jury did not discuss "the subtext of the trial--the decision to go to war against Iraq. 'This was not a question about who can we punish for going to Iraq,' said Mr. Collins, 57, a registered Democrat [and a juror]. 'We just never allowed ourselves to go there, and I am not going to go there now.'" The decision to go to war was probably the worst--the stupidest and most immoral--act of the United States government in my lifetime. But there was no law against it. Nulla poena sine lege (no punishment without a [clear, written, public] law): that is a bedrock principle. We have no hesitation in upholding such principles when we admire the individuals involved. The test of our commitment to civil liberties is how we respond when abhorrent people are in the dock.

March 7, 2007 10:09 AM | category: none


Rule of Law - read that 10 times.

I have little sympathy for Libby who chose to lie under oath. In fact, he did a disservice to the national debate about his civil liberties (and thwarted the investigation of the real issue, Valerie Plame!) by lying. In contrast, I think that Tim Russert sparked a good debate about freedom of the press because he played by the rules.

Provocative post, Peter - thanks!

March 7, 2007 2:35 PM | Comments (2) | posted by Michael Weiksner

Mike makes a valid point about the perjury charge, but I want to clarify that I don't have any sympathy for Libby. If he loses a civil lawsuit and has to pay his whole life's savings to Valerie Plame, it will cheer me. I'm just concerned about preserving the rights of people who do not deserve our sympathy. That's the test of whether they are rights in the first place.

March 7, 2007 3:35 PM | Comments (2) | posted by Peter Levine

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