Since the momentous announcement of the indictment
of Scooter Libby, pundits on the right, and the thundering herd of apologists
for the Bush administration, have trumpeted their elation — first that no one
(including Libby) was indicted for the crime of outing a covert CIA agent, and
second, that Karl Rove wasn’t indicted at all.(See my “Fitz’s Knuckle Ball.“) Their talking point seems to be
that the fact the grand jury didn’t charge a criminal violation of one of the
classified information statutes must mean (or at least can be spun to mean) that
neither Libby, nor any of the other officials implicated in the outing of Plame,
did anything wrong (with a capital W) in doing so, even if Libby himself may
have done something wrong (with a small w) in lying about it. David Brooks said
it best, during his Sunday appearance on Meet the Press:
[T]he American people have to know that the wave of
hysteria, the wave of paranoia, the wave of charges and allegations about Karl
Rove and everybody else is unsupported by the facts.
This, of course, is an echo of the standard
established by this White House for judging the seriousness of the conduct in
this case. Recall that at one point the President and his spokesperson, Scott
McClellan, proclaimed repeatedly that anyone “involved” in the leak at issue
would be fired from the administration.
This was consistent with a well-known personal
bugaboo of Bush’s regarding leaks, not so much (in fact, not at all) because of
their effect on the integrity of government, but because of Bush’s obsession
with secrecy, an axiom for the way this administration conducts its business.
But as it gradually became obvious that White House officials were, in fact,
“involved” in leaking, and more importantly, as the identity of one of those
White House officials in particular came into focus, the president quickly
recast his standard of tolerance for leakers in his midst by raising the bar for
discipline to the commission of a crime. In other words, it became OK with the President,
and wouldn’t disqualify anyone from continued employment by him, if they
violated his own well-known prohibition against leaking, compromised national
security, or, for that matter, even lied about it to him or to the press, just
as long as they didn’t get caught by anyone with the power to slam the jailhouse
door on them.
What is misunderstood about the indictment in this
case, or indeed, about the criminal law altogether, is that it is entirely
possible for an act to be “wrong,” judged by any generally-accepted standard
(i.e., moral, ethical, and yes, even legal), and yet not rise to the level of
criminality. The leak of Ms. Plame’s identity by Libby and others may have
been, and undoubtedly was, wrong, and even arguably illegal, but what facts the
prosecutor was able to establish (hindered, in part, by Libby’s treachery) were
not sufficient, in his estimation, to establish violations of applicable
criminal statutes. Prosecutors are loathe to charge crimes if they think
they’re going to have any difficulty proving them. That hurts their batting
averages, and Fitzgerald is, at least so far, batting at Hall of Fame levels.
But for anyone to take any comfort from the absence
of a criminal indictment on the charge of outing a covert CIA operative, as
though the whole thing had been given the Good Housekeeping seal of approval, is
perverse, because the clear image that emerges from the indictment is that what
was done in the leaking of Ms. Plame’s identity and employment was wrong, on any
imaginable basis, if for no other reason because of the harm it inflicted on
her, and on her country. This is especially significant given the fact that no
one else, not Congress (Sam Ervin, where are you now that we need you?), and
certainly not the White House, has shown the slightest inclination to conduct a
parallel investigation of the incident, broader in scope and less stringent in
procedure than the one conducted by the special prosecutor. Thus, the last word
on the propriety of what was done by operatives of this administration in this
disgraceful episode will hinge on the artificial standard of criminality, and
that will be an outrage.
If you read the indictment (and I suspect many more
people claim they’ve done so than actually have, based on some of the
off-the-wall interpretations of the document we’ve been treated to in the last
48 hours), what comes through very clearly is: first, the identity (and worse,
the employment status) of Valerie Plame got disclosed by one or more White House
functionaries, and second, the revelation (i.e., leak) violated the classified
nature of that information, and, in the process, endangered a CIA agent and
compromised national security as well. The indictment makes that point very
clearly. So did Fitzgerald at his press conference announcing it (recall his
hyper-patriotic, nearly pontifical statements.)
But (admittedly a big but) what the indictment
stops short of doing is charging that the revelation of classified information,
as damaging as that may have been to national security, violated the arcane,
narrowly-defined crimes encompassed by the Intelligence Identities Protection
Act of 1982, or by the Espionage Act of 1917.
The difficulty of proving violations of the IIPA
has long been touted by the defenders of the White House leak as a reason, not
only that a crime was not committed in doing so, but that nothing that was done
was wrong either. Indeed, one of the self-satisfied authors of the IIPA (also,
not surprisingly, one of the principal talking-head apologists for the
administration in this affair), Victoria Toensing, was quoted in the LA Times as
saying, “what is it that somebody did wrong if they didn’t break the law?”
I guess ruining a CIA agent’s career,
endangering her (and arguably others’) life and compromising this country’s
national security at a time of war doesn’t qualify as “wrong,” in Ms.
Toensing’s world.
It must be remembered, though, that the standard
for criminality imports two very important criteria that don’t exist under any
other standard: first, that every one of the elements of what a statute defines
as criminal conduct, some of which can be quite esoteric (e.g., to be a “covert
agent, under the IIPA, one must have served outside the United States within the
last five years) are satisfied, and second (even more importantly), that all of
those elements can be proved by a standard that exists only in criminal
law—beyond a reasonable doubt. Fitzgerald most definitely was not saying that
what was done to Valerie Plame, or to the country’s national security, wasn’t
wrong, damaging or even reprehensible; he was just saying he couldn’t prove it
was a crime.
Blessedly, there isn’t a criminal statute that
applies to every wrong in our society. But when we start using criminality as
the go-to criterion for judging the rectitude of human behavior, especially
behavior that has seriously deleterious consequences, we have abandoned several
important layers of responsibility for that behavior, and in the process,
denigrated the quality of life in a civilized society.
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