Libby case. Let's have a big trial

The Coffee Shop
1

The more I think about this Libby case, the more I think we should have a really big trial.

I am hoping Libby subpeonas 100 or more Washington journalists, starting with the Post reporter who published the article about the alleged secret prisons, and ask them all about their receipts of classified information over the years. Second would be Andrea Mitchel who said she and other journalists covering Intelligence and Defense communities were well aware of Plame’s status before the Times editorial by Wilson.

Let’s take depositions, and when they refuse to answer, let’s put them all in jail. This will be so much fun. It will make us look like a totalitarian state, right up there with China.

This will be so much fun, I hope we have investigations like this every time there is a leak, which I guess would be every day. This would be the ultimate full employment act, since the demand for investigators would be insatiable.

Let’s go for it. I can’t wait.

2

I am quite sure that’s exactly Libby’s strategy.

when they refuse to answer, let’s put them all in jail. This will be so much fun. It will make us look like a totalitarian state, right up there with China.

That sounds like you’ve been hitting the crack pipe, though.

3

I believe the best way to get rid of bad laws and bad prosecutions is to strictly enforce the laws and follow the logic of the prosecutors to its obvious conclusions.

Now that I think about this, maybe that is why Fitzgerald didn’t press leaking charges. The zoo I describe is now arguably irrelevant.

It all still seems like fair game for discovery though, even if it can’t get to trial.

I think it was you that said such leaks should be investigated. If so, let’s investigate them all. The feds are going to need a few thousand good men and women as prosecutors. Should be a boon for the law schools.

4

**I believe the best way to get rid of bad laws and bad prosecutions is to strictly enforce the laws and follow the logic of the prosecutors to its obvious conclusions. **

That’s funny, I had pegged your position on that as being that the best way to get rid of bad laws is to vote them down. But hey, whatever.

What bad laws are you talking about? You think it’s a bad law that makes it a crime to leak classified information? Or you think the law that makes it illegal to lie to investigators during a criminal investigation is a bad law? Or you think the law against lying in court, under oath, is bad? I’m really not following you, I think.

Now that I think about this, maybe that is why Fitzgerald didn’t press leaking charges. The zoo I describe is now arguably irrelevant.

??? You aren’t making the logical connections today, Art. Help me out.

5

This case is not an example of a bad law. The laws are fine. It is the discretion being used to prosecute that is flawed. If we really want to prosecute these violations, lets have a roundup of leakers and journalists and imprison them all, just like, say, China. Just starting that process would put a stop to all such flawed prosecutions.

Prosecuting and enforcing laws is the vehicle to get laws changed democratically. Want to get rid of sodomy laws? Easy, arrest a few hundred or a few thousand people under those laws and see how fast they come off the books.

My point about the leaking charge is that such a charge would make putting dozens of reporters on the stand to find out all their sources of information as part of a defense that Libby didn’t act as a leaker. I really don’t see how a judge could stop such a zoo.

With a perjury charge, most or all of that is arguably irrelevant. It doesn’t matter what reporters know. It only matters what Libby knew and what he said.

6

The laws are fine. It is the discretion being used to prosecute that is flawed.

If these laws shouldn’t be enforced in a case where the underlying charge was the outing of a CIA employee for political reasons during wartime, in exactly what kind of case do you figure they should be enforced?

7

Enforce them consistently, under the same ground rules for everyone, or don’t enforce them at all.

There is no way this case would be brought by a normal prosecutor, so it shouldn’t be brought at all. Calling reporters in to testify and putting one in jail over such a thing is a travesty.

The prison leak, whether true or not, does real damage, yet there will likely be no investigation.

8

**Enforce them consistently, under the same ground rules for everyone, or don’t enforce them at all. **

Wait a minute. A minute ago you were saying that the laws are fine, you just think they aren’t being applied with a proper sense of discretion. Now you’re saying that all discretion should be removed from the process.

There is no way this case would be brought by a normal prosecutor, so it shouldn’t be brought at all.

What?

** Calling reporters in to testify and putting one in jail over such a thing is a travesty.**

Why?

The prison leak, whether true or not, does real damage, yet there will likely be no investigation.

It isn’t the leak that’s caused the damage, it’s the probability that we’re running secret (and illegal) prisons that’s damaging.

9

No, I am saying that the discretion should be used under consistent standards.

We shouldn’t go around locking up reporters in this country absent an overwhelming reason. Reporting troop movements and ship sailing times are the classic reason. Investigating lies about noncrimes doesn’t cut it, in my opinion.

Prosecutors need to use discretion when they go after reporters. This one didn’t because his job description doesn’t include discretion. His job is to do whatever it takes and spend whatever it takes to investigate a particular matter independent of any cost/benefit justification. It is the legal equivalent of the Alaskan bridge to nowhere. This is not a shot at Fitzgerald. He is just doing his job. It is not his fault his job description is structurally flawed.

It is the leak of the alleged secret prisons that is going to cause damage. People are going to die and cooperation with our Intelligence Agencies is going to decrease whether the charges are true or not. Look to the false Newsweek article about mishandling of the Koran at Gitmo for an example of false leaks that killed people.

10

Art, before you insist that Libby is an anomaly, you should go out and get some proof for what you are talking about. You should find out whether prosecutors will really overlook lies that schlubs tell while under investigation. The prosecutors I know don’t overlook it. I think you are just assuming this based on zero evidence.

11

We shouldn’t go around locking up reporters in this country absent an overwhelming reason. Reporting troop movements and ship sailing times are the classic reason.

Uh . . . what? I don’t know of any reporters who have been locked up for revealing troop movements.

We are not now, and have never, and are in no danger of, going around locking up reporters. To the extent that it happened in this case- to one reporter- it was, in fact, for the classic reason- refusal to name a source during a criminal investigation.

Investigating lies about noncrimes doesn’t cut it, in my opinion.

Nobody investigates “noncrimes,” Art. They either investigate crimes, or investigate to find out if a crime has been committed. In this case, it was the latter, and the fact is, there was a crime committed. Don’t pull the Elwood bit about the Identity Act, please.

Prosecutors need to use discretion when they go after reporters.

Nobody “went after” any reporters. Reporters were obviously central to this investigation because of its very nature. One refused to reveal her source to the grand jury, and had absolutely no legal justification for doing so. She was held in contempt as a result until she complied. As far as I know, that’s exactly how the textbooks all say it should happen. All of a sudden we’re coming close to a witchhunt against reporters, and we look like Red China, I guess. Whatever.

It is the leak of the alleged secret prisons that is going to cause damage.

Right, it’s the leak, and not the fact that secret prisons are widely held to be a violation of basic human rights, that hurts us. Good grief.

12

You have no idea if the leak about the prisons has any validity whatever, yet you assume it does in your answer. Weak, vitus, weak.

The logic of the Libby case is that we should have an unlimited budget investigation any time there is a leak of classified information that goes public. It follows as night follows day that such a policy will lead to an unlimited series of witchhunts against reporters.

This prosecution should have been stopped at such time as it was determined that the leak itself was not a crime worth charging. Instead it continued by compelling testimony from I don’t know how many reporters and throwing one in jail. This case was not worth that chilling on First Amendment freedoms. That is a call of discretion, not the law.

The prison leak is much more serious, and is at least arguably worthy of such an investigation.

If your policy is to pursue all leaks consistently, then sign up for the logical consequences of such a policy consistently applied. Otherwise, join the Libby prosecution is destructive club.

13

**You have no idea if the leak about the prisons has any validity whatever, yet you assume it does in your answer. Weak, vitus, weak. **

No, I don’t know if the report is true or not. I have a strong suspicion that it is, based on the fact that I’ve heard claims about secret prisons a lot earlier than now, and based on the fact that there haven’t been any denials from the administration.

But of course if there are no secret prisons, there was no leak.

This prosecution should have been stopped at such time as it was determined that the leak itself was not a crime worth charging.

At which point was that, exactly? It seems to me that it was sort of hard to make that determination, in significant part because Libby kept lying. Which is, you know, why he’s being prosecuted.

This case was not worth that chilling on First Amendment freedoms.

Please.

14

The point at which it was clear that there was no underlying crime was probably very early in the investigation. I offered the prediction on this forum many months ago that we would be left with only a perjury/obstruction of justice count against somebody.

You are usually an admirably consistent guy. Why don’t you sign up for the logical consequences of your approach to this situation?

The logical consequences of your policy lead inevitably to repeated interrogation of reporters and throwing them in jail. That is intolerable to me.

We don’t need a shield law since there probably are some circumstances in which the Fitzgerald approach to journalists is appropriate. Those circumstances need to be extraordinary.

We need prosecutors that show respect to the responsibilities of journalists. We need journalists that respect the security requirements of the government. Hate to say it, but the journalists are holding up their end of the bargain for the most part. Fitzgerald type investigations do not, and they need to go away.

15

The point at which it was clear that there was no underlying crime was probably very early in the investigation.

You’ve been reading Cousin’s posts too long. It isn’t clear even now that there was no underlying crime. There was.

I offered the prediction on this forum many months ago that we would be left with only a perjury/obstruction of justice count against somebody.

Bravo. I hope you don’t think that means there was underlying crime.

Why don’t you sign up for the logical consequences of your approach to this situation?

I don’t sign up for any hysterics about a chilling effect on the First Amendment because it simply isn’t a plausible possibility, Art.

16

Did I misunderstand? Do you want a special prosecutor to investigate foreignprisongate? Do you want Ms. Priest in front of a grand jury?

Do you want a special prosecutor to find those that leaked the Abu Graib photos?

Do you want a special prosecutor to find the source of the erronous Koran abuse at Gitmo story? Do you want all these journalists in jail if they don’t cooperate?

17

**Did I misunderstand? Do you want a special prosecutor to investigate foreignprisongate? Do you want Ms. Priest in front of a grand jury? **

You didn’t misunderstand. I’m pretty much with Matt. What I want is an investigation to see if we’re engaged in torturing people in secret and illegal prisons. Can you really not see the difference between an investigation to see who leaked legitimately classified information for political purposes, and an investigation to see who leaked information that’s classified because it’s illegal?

Besides which, the cases are not similar with regard to what’s known- like you said, we don’t *know *that the prisons exist, therefore we don’t know that there’s been a leak of classified information. This is a little different than the Plame case, no?

Do you want a special prosecutor to find those that leaked the Abu Graib photos?

I’m sorry, I guess I missed the part where those photos were classified.

Do you want a special prosecutor to find the source of the erronous Koran abuse at Gitmo story?

I’m sorry, I guess I missed the part where the abuse reports at Gitmo were classified.

18

Yes, you missed those parts. The photos were part of a criminal military investigation. The leaking of them was illegal. The Koran abuse story was the misstating of a classified report from a regular leaker to Newsweek.

There is no allegation of illegality in the prison story. Do you actually think it is up to the potential leaker to decide what classified information is OK to leak and what is not?

You are twisting in the wind trying to avoid a generalized journalist witch hunt while allowing it in contexts that you politically support.