Tomorrow, June 5, after some four years of an unenviable ordeal, I. Lewis Libby, a brilliant man, a dedicated public servant and the father of two young children, will stand in the dock before U.S. District Court judge Reggie Walton to be sentenced for what a jury found constituted perjury, obstruction and false statements to government investigators and a grand jury. Leaving aside, for the purpose of this discussion, the significant flaws in the investigation and trial, the continuing questions about the veracity of the prosecution's witnesses and the thin and contradictory evidence against him, the question now is what is the proper punishment?
To the obvious fury of the prosecution, the Probation Department has filed a report full of praise for the defendant-his long history of decency and assistance to others and his dedicated and hard work - and has suggested that under the now advisory-only sentencing guidelines, his sentence should be no more than 15 - 21 months. Further it has offered a number of factors warranting a diminution of his sentence which, were this an ordinary case, probably would result in probation-only with no sentence of jail time.
Among these factors are the fact that he has already suffered considerably as a result of this conviction and is expected to lose his license to practice law, his outstanding record of public service and prior good works, the improbability of recidivism and the fact that the conduct for which he was found guilty was aberrant and utterly out of character.
To me, Libby appears an heroic figure. If you think that description is overblown or inaccurate, chances are great that most of what you know about him and this case was shaped by news accounts consisting for the most part of "too good to be fact checked" megaphoning of Joseph Wilson's lies. And lies they were, as the bi-partisan Senate Intelligence Committee found after extensive investigation of the circumstances surrounding Wilson's trip to Niger.
But Judge Walton has to know what a heroic figure Libby is, for in preparation for this trial he reviewed hundreds of classified documents detailing the threats to national security which Libby dealt with every day during the period in which the comparative petty nothingness of Plame also developed. The jury was allowed to know very little of this because the judge sharply restricted how much of this they (and we) would see.
We never will know most of the hair-raising threats he dealt with in the period after 9/11 but some were so public we don't need the classified documents to appreciate their import.
For one, there are the still unresolved questions about the anthrax attacks on various news organizations and Congress. Despite FBI assurances these were not acts of international terrorism and a years-long extensive Bureau investigation, these acts could not be proven to be otherwise than what they seemed at the time-a warning that bio-chemical weaponry was in the hands of our enemies who had the technological and organizational capability of inflicting damage far in excess of what we'd just suffered in the 9/11 attacks.
As I say, we know of this threat but not the countless others he was tasked to deal with. His successor as the Vice-President's National Security Advisor, John Hannah, testified at the trial,
"I never met anyone who worked longer ,had a broader range of responsibilities or was more serious about fulfilling them than Mr. Libby."
The White House physician says of Libby in that post-9/11 period:
"...the stress was continuous and intense...I can tell you for certain that Mr. Libby worked himself to exhaustion day after day. This is a testimony to his devotion to our nation and the vice president."
For it was not just the threats alone that were worrisome, it was the obvious fact that the nation's federal service was ill-prepared to prevent them from becoming reality and to contain damage should the threats have been realized. We already know of the abject failures of the CIA and FBI. Imagine receiving threat information with little ability to rely on the sources' credibility or analysis. Add to that, the existing legal framework was cumbersome and the bureaucracy not prepared or willing to shift gears as the exigent circumstances demanded-from tracking terrorists' domestic contacts, to the treatment of captured unlawful combatants, to setting in place a nationwide system for containing bio-chemical warfare fallout-everything had to be formulated with care and sold to an entrenched bureaucracy zealous of protecting its turf, and slow to comprehend the new world we had entered.
If you paid attention to the testimony of former Acting Attorney General James B. Comey (the man who appointed the Special Prosecutor after knowing full well that it was Richard Armitage who leaked Plame's identity to Novak) recently before the Senate Judiciary Committee you will see what I mean.
The President delegated to the Attorney General the right to recertify every 45 days the legality of the NSA program monitoring international terrorist contacts with persons in the U.S. On 29 occasions since September 2001 Ashcroft had done so. In the spring of 2004, new counsel was engaged at the Department who found some problem in some detail of the program and on March 4, 2004 (a week after learning of the problem) Comey briefed Ashcroft about this. That very day Ashcroft has hospitalized and underwent emergency surgery. Another 5 days passed before Comey, then serving as Acting Attorney General, mentioned the problem to the White House. And when he got around to telling them, he did not say it was about a detail in the program, but rather he said they would refuse to recertify the legality of this important program at all.
Andrew Card and then-White House Counsel Alberto Gonzales went to the hospital to clarify this with Ashcroft, and Comey dramatically recounted to the Committee how he rushed there to be certain that they would not persuade Ashcroft to change his mind. In his view, he was a champion of civil liberties against the overreaching, unseemly efforts of others. The President became personally involved, reauthorized the program himself pending NSA's reworking of the program to Comey's satisfaction which it did in one week's time. To my mind Comey should have spent less time turf protecting and a great deal more time on timely communications and teamwork to resolve the issue without the need for his eleventh hour dash to the hospital with sirens blaring. Interestingly, when Senator Specter questioned him as to whom he'd had disagreements with on the program, he mentioned Card, Gonzales, Vice-President Cheney and David Addington. Despite several opportunities to name others, he never said Lewis Libby, but it was Libby who was the point man in trying to get the Department of Justice to sign off on the NSA program. It's unlikely that he forgot this. Just as it's more likely that he didn't want to draw the Committee's attention to the fact that he had, in this same period of time, sicced his friend Fitzgerald on to his political opponents inside the Administration, knowing full well they were not responsible for breaking to Novak the news that Wilson's wife worked at the CIA.
With full knowledge of the nearly impossible task Libby had inside and outside the Administration, the Probation Department's recommendations for downward departures of a recommended sentence far less than what the prosecution is seeking should guide the Judge to sentence Libby to probation only.
No matter how Judge Walton acts on Tuesday, the President should not continue to wait further before exercising his power to pardon Libby, something at least one or two of the jurors requested at the time they rendered their decision. It is obvious that the President has wanted to show respect for the legal process by staying out of the matter, allowing the Department of Justice and the Special Prosecutor and Court to act in accord with the law and their professional judgments. But in the sentencing papers he just filed, it is clear that the unsupervised Special Prosecutor has no professional judgment worth counting on. In these latest papers, as he did to judicial admonishment following his shocking "rebuttal" closing argument at the trial, Fitzgerald suggests that Libby lied to cover for the vice-president, implying that the leak to Novak (which as we now know came from Richard Armitage, Karl Rove and the CIA's Bill Harlow) was coordinated by the Vice President. His "evidence" for this plot is transparently thin gruel-notations on news articles about Wilson and a twisting of one statement Libby made in the course of hours of interrogations in which he consistently argued that the vice president never urged him to disclose Plame's identity or role in her husband's Mission to Niger.
It simply does not occur to this man that when the press is reporting that Cheney sent Wilson, that Wilson "rebutted" the intelligence the Administration was relying on, that the Administration knew that and ignored it anyway and that not a single one of these things is true, the vice president would want to respond credibly to these monstrous lies. To a reasonable mind, it does not follow that an effort to craft a credible and accurate response to a pack of lies involves a deliberate plot to break the law.
(Of course, it would have helped if the CIA had timely informed the White House that it had sent Wilson and explained why they considered his report confirmation, not rebuttal information. But then this agency did not require Wilson to sign a non-disclosure agreement and yet classified the information about the trip. This series of acts meant that Wilson was free to lie about his Mission, while the Administration was seriously constrained in responding.)
In any event, there is more wrong with the Prosecutor's sentencing filings than can be fully dealt with here. Leaving aside the warrantless claims of wrongdoing by the Vice President and the demand for a higher sentence on the crackpot notion that had Libby not lied, the government could have proven a master plot by Cheney, the Fitzgerald fantasy of a master Cheney plot is, in fact, preposterous on its face. Certainly if Armitage and Rove and Harlow were puppets in Cheney's hands, we'd have some evidence of this which had not sprung full blown from Fitzgerald's fevered brow. What is not a fantasy is that Wilson's story as reported by Nick Kristof and others was a fabrication, and that Plame has given three inconsistent sworn versions of her role in the Mission .
Equally fact-free is the claim in these papers that Plame was "covert" within the meaning of the Intelligence Identities Protection Act (IIPA). One would have thought that a good investigator would have made an effort to find out whether this was the case at the beginning, not at the sentencing, where Fitzgerald is seeking an upward revision of the sentence claiming now that Plame is "covert", in circumstances shocking to anyone with a notion of due process.
At trial, the Prosecutor denied the defendant access to classified records about Plame's status, saying her status was irrelevant because he was charging no violation of that law. The parties were thereafter barred from mentioning it, though Fitzgerald broke that when he made his hyperbolic "cloud on the vice president" rebuttal closing to the jury-an act which breached the court's rule and put before the jury prejudicial matters never introduced into evidence and in a time and manner precluding a response.
Fitzgrald's "evidence" for this is largely taken from the recent Waxman hearing, which proved no such thing, and an undated summary of her personnel records, which also prove no such thing. He has deliberately conflated the Agency's terminology with that of the far more restrictive language in the Act and hidden from view the facts necessary to ascertain when her service abroad ended, a necessary factor in such an analysis. (Her husband in his book said she stopped serving abroad in 1997,which, if true, would place her outside the purview of the IIPA.) Certainly the same service records (including pension records) summarized by the Prosecution reveal when her service abroad ended. Why has he not presented these records to the Court and defendant?
Indeed, with that very summary in hand, Judge Walton said at trial that he was unable to determine Plame's status. The CIA general counsel has been asked by Congressman Hoekstra, ranking Republican on the House Intelligence Committee, to render an opinion on whether Plame is covered by the IIPA and it has not been able to do so to my knowledge, though one might have thought this should have been requested by the prosecutor some four years ago, if he seriously believed this was the case. One would have thought that if he had evidence that Plame was covered, he'd have offered it into evidence when he was arguing the Judith Miller case challenging reporters' privilege, or in this case, for that matter, where the absence of such evidence certainly accounted for some confusion by the jury .
And this tardy claim that Plame was covert, of course, ignores the other insurmountable barriers to an IIPA claim: The Agency certainly cannot show it did everything in its power to prevent her identity from disclosure, and there has never been any evidence that anyone under investigation by Fitzgerald knew of her status in the Agency, in large part because the Agency had been so careless. The only thing this filing shows to a certainty is that Fitzgerald demonstrates here, as he does in the Conrad Black case in Chicago, a too-eager jumping into cases without adequate research, a snipping the edges off the truth to make them fit the jigsaw puzzle case in his mind, a granting of immunity to the people really responsible for the claimed wrongdoing and then counting on the court's predilection to give the government the benefit of the doubt and the jury's distaste for the defendant to carry him through despite the weaknesses of the case which remains.
To the part of the public which has watched real national security leaks published regularly on the front pages of the major newspapers without a single indictment or apparent punishment of the sources, any sentence beyond probation will result in well-warranted rage. The President should know that we are fed up with the misuse of resources to deal with this petty matter occasioned by the conduct of the CIA and its agent Plame and her husband themselves, while far larger, truly significant matters remain unpunished.
And then there is the gall of the Department of Justice pursuing this while failing to notify the 9/11 Commission of Sandy Berger's deliberate theft and destruction of classified documents in a manner seemingly designed to obstruct the work of the Commission, the shockingly small punishment the Department sought and its continued failure to fully enforce the paltry plea agreement it received.
In sum, a failure of the President to pardon Libby now, no matter how the Judge acts on Tuesday, will foster further contempt for the law and the workings of the Department of Justice under his watch, not respect for it. It's time for him to change course, take charge, and put an end to this long running miscarriage of justice.
Clarice Feldman is an attorney in Washington, DC, and a frequent contributor to American Thinker, for which she covered the Libby Trial.