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Within a week of the indictment of I. Lewis Libby Jr., Democrats demanded that President George W. Bush pledge not to pardon him. So much for the presumption of innocence. But the Democrats had a point. It is worth considering — before the vice president’s ex-chief of staff is tried and financially ruined by lawyer fees — whether a pardon is appropriate. President Bush should respond to the Democrats’ effrontery in evoking the pardon issue this early by seeing and raising them. He should pardon Libby. Now. The power to pardon emerges from Article II of the Constitution. Its exercise by the president is virtually unchecked and frequently controversial. Indeed, the last time a Democrat held the power, Bill Clinton scandalized the nation by pardoning, in the final hours of his presidency, such questionable beneficiaries as Marc Rich and Pincus Green, who had been indicted for tax evasion, fraud, racketeering, and selling oil to Iran while Americans were held hostage. Their pardons followed large contributions to the Clinton Library by relatives and friends. Unlike the Clinton pardons, there would be no benefit to Bush from pardoning Libby. On the contrary, it would generate a political firestorm. Yet a pardon would be the right thing to do. First, the indictment is another example of bootstrap prosecution, where a prosecutor, having failed to find any other wrongdoing, ends up indicting someone for lying during the investigation. Second, Libby did not “out” Valerie Plame, because she hadn’t been “in” since 1997. Third, and most important, Libby faces charges because he got caught in the middle of a fight between the White House and the Central Intelligence Agency over control of foreign policy. He ought to be pardoned to establish where ultimate control over foreign policy rests. LACK OF EVIDENCE The Agent Identities Protection Act of 1982 makes it a crime to disclose the identity of a covert CIA agent. The possibility of an unlawful disclosure was the reason the CIA demanded an investigation after a July 2003 Robert Novak column identified Plame as a CIA employee. Eight days earlier, Plame’s husband, Joseph Wilson IV, had written a New York Times op-ed accusing the administration of dishonesty in its handling of information related to Saddam Hussein’s attempt to purchase uranium in Africa.
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The Libby indictment makes no mention of the 1982 act. And for good reason. The act requires that the person who is outed actually have covert status (which requires a foreign assignment within five years of the revelation), that the government take “affirmative measures” to conceal the person’s identity, and that the revealer know that the government is taking those measures. Plame was not “covert” in any real sense of the word. She hadn’t had any recent foreign assignments. On the contrary, she had been commuting to a desk job in McLean, Va., since 1997. Nor has the CIA taken affirmative measures to conceal her identity. The spy agency did not object when her husband published his op-ed nor when he followed up with newspaper and television interviews. Now, Wilson has as much of a right to promote himself as Paris Hilton does. But the CIA had to know that his frenetic self-glorification would generate interest in what, if any, grounds existed to view his conclusions skeptically. The agency had sent him to Niger at his wife’s suggestion. By giving Wilson free rein to promote himself, the CIA virtually assured that the public would learn of his wife’s connection to that mission and thus to the CIA. Instead of invoking the Agent Identities Protection Act, the prosecutor indicted Libby under 18 U.S.C. ��1001, 1503, and 1623, which make it a crime to obstruct justice or make false statements. When the indictment was announced, readers of The New York Times or the San Francisco Chronicle might have thought the republic was tottering. But readers of the actual 22-page indictment would have found it astonishingly insipid. Libby’s “crimes” involve alleged contradictions between his testimony during the investigation and his prior conversations with the press. Here are the contradictions, in all their criminal horror:

• Libby testified to the grand jury that when Tim Russert of NBC News asked whether he knew that Wilson’s wife worked for the CIA, Libby “was surprised to hear that.” The truth, according to the indictment, was that Russert did not ask him whether he knew that Plame worked for the CIA and that indeed Libby already knew that she did.

• Libby testified that he had advised Matthew Cooper of Time and Judith Miller of The New York Times that he had heard other reporters say that Plame worked for the CIA, but that he didn’t know whether this was true. The truth, according to the indictment, was that Libby did not tell Cooper and Miller that he did not know whether Plame worked for the CIA; rather, he confirmed without qualification that he had heard she did. This is what the special prosecutor has been investigating for two years? If this were a civil case for fraud, Libby could demur to the complaint, and the demurrer would probably be sustained without leave to amend. No prosecutor could credibly claim that anyone detrimentally relied on Libby’s apparent efforts to spin. Justice Ruth Bader Ginsburg, concurring in Brogan v. United States (1998), cautioned that the same statute underlying the Libby indictment could be abused: “[A]n overzealous prosecutor or investigator — aware that a person has committed some suspicious acts, but unable to make a criminal case — will create a crime by surprising the suspect, asking about those acts, and receiving a false denial.” At this stage we do not know whether Libby’s or the reporters’ version of events is correct. (Certainly there are reasons to trust Libby. None of the reporters would talk to investigators until he released them from their vow of silence. If Libby feared they would contradict him, why would he have released them to talk?) But whether someone lied, or whether busy people have just remembered years-old conversations in different ways, this remains a bootstrap indictment. FIGHTING BACK Public outrage over the episode has been fueled by the impression that the Bush administration tried to out, and so endanger, a CIA agent in retaliation for her husband’s criticism. As seen, the indictment is not based on any such wrongdoing. But was retaliation in the air, even if the prosecutor cannot make that case against Libby? Bluntly put, Wilson’s critique was a pack of lies. Libby had every right to defend the administration against a mendacious critique by disclosing the nepotism underlying its author’s selection for the Niger mission. In his op-ed, Wilson claimed that the mission originated with Vice President Dick Cheney. In interviews and his instant memoir, Wilson consistently denied that his wife played any role. But the vice president’s office has denied foreknowledge of the mission, and no evidence has surfaced to contradict that. On the contrary, all the evidence has contradicted Wilson. In July 2004 the Senate Select Committee on Intelligence released a report stating that a CIA official said that Plame had “offered up” Wilson’s name for the mission. She followed up with a memo citing her husband’s qualifications. The Senate report also found that Wilson provided misleading information to The Washington Post. In June 2004 he told the paper that he had concluded the uranium rumors were based on supposed sales agreements between Niger and Iraq that were obviously forged. But those documents were not in American hands until eight months after Wilson’s trip. According to the Senate report: “Committee staff asked how [Wilson] could have come to the conclusion that the �dates were wrong and the names were wrong’ when he had never seen the CIA reports and had no knowledge of what names and dates were in the reports.” Wilson then admitted that he may have “misspoken” to reporters. His op-ed piece also misrepresented his actual findings. Wilson wrote in the Times: “It did not take long to conclude that it was highly doubtful that any such transaction had ever taken place.” But his report to the CIA actually strengthened the evidence of Iraq’s possible attempts to buy uranium in Niger. According to the Senate report, Wilson told the CIA that in 1999 a businessman approached the former prime minister of Niger, asking him to meet with an Iraqi delegation to discuss “expanding commercial relations” between Niger and Iraq. The former prime minister understood the meeting to mean they wanted to discuss yellowcake sales. But he let the matter drop because of United Nations sanctions. Wilson also told his CIA debriefers that Iraq tried to buy 400 tons of uranium in 1998. Why the discrepancies? In May 2003, shortly before he published the op-ed, Wilson had joined John Kerry’s presidential campaign as a foreign policy adviser. But then the Senate committee released its report in July 2004. The report concluded that Wilson “either by design or through ignorance, gave the American people and, for that matter, the world a version of events that was inaccurate, unsubstantiated and misleading.” In the wake of the report, Wilson resigned from the Kerry campaign. The New York Times op-ed was a partisan political attack. In politics, as in litigation, it is perfectly acceptable to discredit your adversary by revealing bias. If Libby told reporters about Wilson’s wife’s connection to the CIA (as the indictment claims), instead of the other way around (as Libby claims), he was quite justified in doing so. A SHADOW WAR Even though the indictment does not accuse Libby of outing Plame, even though Wilson’s press campaign smacked of dishonesty, we are still left with the allegation that Libby misled the grand jury and the Federal Bureau of Investigation. If the indictment is false, Libby should be vindicated at trial. If the indictment is true, why should the president pardon a man for lying, even if the lie came in response to a dishonest attack? The answer goes beyond the self-promotion, mendacity, and rank political interests of the players on the other side of this Beltway drama. It involves an institutional conflict. From the buildup to war until the present day, there has been a steady flow of leaks against the administration’s Iraq policy. On May 31, The New York Times carried a leaked story about a CIA-run airline. On Nov. 5, The Washington Post carried a leaked story about CIA-run prison camps in Europe. Both leaks may endanger people who really are working undercover. They may also threaten the governments and citizens of the states where those airlines and camps are established. As London and Madrid know, the world can be a dangerous place for American allies in the war on Islamic fascism. Yet the CIA has done nothing about these leaks. The fact that its own people are imperiled has not led it to demand an investigation. At the same time, the agency has permitted the publication of criticism of administration policy. The Wilson op-ed is only one example. The CIA has also allowed the former head of its Osama bin Laden unit, Michael Scheuer, to publish a book titled Imperial Hubris: Why the West Is Losing the War on Terror. With all these leaks and authorized releases of CIA information, only Novak’s column has aroused the CIA’s concern. Not coincidentally, Novak’s column discredits an administration critic and bolsters the administration’s policies. The CIA, as an institution, has never agreed with Bush’s Iraq policy and has consistently tried to sabotage that policy. This problem transcends politics. Sooner or later, a Democrat will be president again. Democrats too will suffer if executive agencies are free to carry out internecine warfare with the White House. Presidents of both parties once truckled to FBI Director J. Edgar Hoover for fear of his secret stash of information. The spectacle of a White House incapable of controlling executive agencies is still dangerous for the country. President Bush is in a fight over his wartime policies against adversaries willing to lie to undermine those policies. In wartime, commanders look out for their troops. Libby is in trouble now not because he endangered a CIA agent but because he stood up for the administration, like a good and loyal soldier, in a shadowy Beltway turf battle. The president should stand up for Libby.


Lawrence J. Siskind of San Francisco’s Harvey Siskind Jacobs specializes in intellectual property law. A longer version of this commentary first appeared in The Recorder , an ALM newspaper.

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