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IN THE COURT OF IMPEACHMENT AND WAR CRIMES: LIBBY BUSH (V) WE THE PEOPLE ETAL. UPON REVIEW: MATTERS OF COMMUTATION, PARDON, CONFLICTS AND QUESTIONS TO BE RESOLVED, POLITICAL IMPLICATIONS AND MATTERS OF TRUTH AND FACT. PRECINCT MASTER ED. DICKAU PRESIDING
Let me preface my remarks and research with the general observation that this entire matter has been a train wreck with mile upon mile of sham, shame, infamy, embarrassment, farce, incompetence, ineptitude and political theater, all of which have served to knock the real issues off the rail side and out into the shadowy protective cover of some forgotten over grown forest of diversion.
This matter really needs some clarification and perspective.
The Valerie Plame Affair (Wikipedia Outline…clean)
It all started out when…(sorry for the review but it is necessary for some, to return to the subject of former CIA employee Valerie Plame because of the confusion and misinformation and conjecture that has muddied the debate in Washington and her story and that of her husband, former ambassador Joseph C. Wilson IV, over the past three years.
But all those who have opined on this affair ought to simply take note of the not-so-surprising disclosure that the primary source of the newspaper column in which Ms. Plame's cover as an agent was purportedly blown in 2003 was former deputy secretary of state Richard L. Armitage. OK, that is a clearly defined fact, and is he in trouble…no! Hell he’s not even on the radar screen any longer.
Mr. Armitage was one of the Bush administration officials who supported the invasion of Iraq only reluctantly. He was a political rival of the White House and Pentagon officials who championed the war and whom Mr. Wilson accused of twisting intelligence about Iraq and then plotting to destroy him. Unaware that Ms. Plame's identity was classified information, Mr. Armitage reportedly passed it along to columnist Robert D. Novak "in an offhand manner, virtually as gossip," according to a story the Post's R. Jeffrey Smith, who quoted a former colleague of Mr. Armitage.
It follows, or should have followed, that one of the most sensational charges leveled against the Bush White House -- that it orchestrated the leak of Ms. Plame's identity to ruin her career and thus punish Mr. Wilson -- is untrue. (Well things are not that simple)
The partisan clamor that followed the raising of that allegation by Mr. Wilson in the summer of 2003 led to the appointment of a special prosecutor, a costly and prolonged investigation, and the indictment of Vice President Cheney's chief of staff, I. Lewis "Scooter" Libby, on charges of perjury.
All of that could have been avoided had Mr. Armitage's identity been known three years ago.
That's not to say that Mr. Libby and other White House officials are blameless.
As prosecutor Patrick J. Fitzgerald reported, when Mr. Wilson charged that intelligence about Iraq had been twisted to make a case for war, Mr. Libby and Mr. Cheney reacted by inquiring about Ms. Plame's role in recommending Mr. Wilson for a CIA-sponsored trip to Niger, where he investigated reports that Iraq had sought to purchase uranium.
Mr. Libby then allegedly disclosed Ms. Plame's identity to journalists and lied to a grand jury when he said he had learned of her identity from one of those reporters. Mr. Libby and his boss, Mr. Cheney, were trying to discredit Mr. Wilson; if Mr. Fitzgerald's account is correct, they were careless about handling information that was classified. I am trying to be even handed here, but “Mr. Calculation Cheney”, careless; I don’t think so, even in arrogance and advocacy he is able to consistently keep his eye on the prize. (OK, that’s as close to a “Fair and Balanced disclaimer” as I can manage)
Nevertheless, if you are an administration supporter your spin and diversion line, finger pointing blame fixing knee jerk response is: “it now appears that the person most responsible for the end of Ms. Plame's CIA career is Mr. Wilson. Mr. Wilson chose to go public with an explosive charge, claiming -- falsely, as it turned out -- that he had debunked reports of Iraqi uranium-shopping in Niger and that his report had circulated to senior administration officials”. (Accepted; Wilson is not squeaky clean, but then who is around this town?)
He ought to have expected that both those officials and journalists such as Mr. Novak would ask why a retired ambassador would have been sent on such a mission and that the answer would point to his wife. He diverted responsibility from himself and his false charges by claiming that President Bush's closest aides had engaged in an illegal conspiracy. It's unfortunate that so many people took him seriously, but they did. No surprise; folks around here will believe anything if sounds like dirt.
So what is/was this really all about? L 'affaire Plame is about breaking the law, about arrogance, about the ordinary viciousness that suffuses the corridors of power in Washington – but its real significance is overlooked in the frenzy to find the perpetrator and tie him or her to the White House. The problem with this theory is that George W. Bush is the biggest victim of this incident. I guess I should care in terms of accuracy of reporting, but he brings so much of this garbage heaping upon himself. I’ve acknowledged the fact, and that is candidly, all the sympathy I can muster…none.
I digress for a moment….
After all, it was the President who was made to look like a fool when, in his State of the Union speech, he referred to the now-discredited story about Iraq seeking to purchase "yellowcake" uranium to build a nuclear bomb. When Joe Wilson's op ed piece appeared in the New York Times, describing his trip to Niger on behalf of the CIA, and the complete lack of any real evidence for Bush's contention, it must have occurred to Team Bush that they'd been set up, big time. Remember, the sole "evidence" supporting the Niger uranium angle had been a set of papers that turned out to be crude forgeries.
"These documents are so bad," a senior IAEA official told the New Yorker, "that I cannot imagine that they came from a serious intelligence agency. It depresses me, given the low quality of the documents, that it was not stopped. At the level it reached, I would have expected more checking." A "former high-level intelligence official" interviewed by the New Yorker is sure it was an inside job "Somebody deliberately let something false get in there. It could not have gotten into the system without the agency being involved. Therefore it was an internal intention. Someone set someone up."
Never mind, for the moment, who spilled the beans on Plame. The real question is: who set up the President of the United States by feeding him forged documents and passing them off as authentic? Because the answer to both questions is likely to be the same.
The big mystery of the Valerie Plame affair was: why did they do it? What possible motive could a top U.S. government official have in "outing" a CIA officer engaged in the essential work of nuclear nonproliferation?
In the context of Robert Novak's column, which caused the ruckus to begin with, it “looked” like they were trying to discredit Wilson by implying he got the assignment on account of nepotism: Plame is Wilson's wife.
But the primary effects of naming her were two-fold, neither of which had much to do with questioning Wilson's credentials: it ended her career as an undercover operative, and warned off anybody else thinking of going public with evidence that the War Party had twisted intelligence estimates to make the case for war in Iraq. Punish, and deter. Ahh, now we’re getting somewhere.
But what, exactly, were they trying to deter? What was it about Wilson's mission to Niger that provoked such extreme retaliation? They clearly knew what they were doing was illegal, (there’s that word again), and high risk: outing a CIA operative is a felony punishable by up to 10 years in prison and a $50,000 fine. So why take the chance? (Sorry, but we all know now that those prison terms and fines don’t mean shit!)
The answer is because it throws the spotlight on an even bigger crime, the Niger-uranium forgeries – and links them to the office of the Vice President.
In his op ed, Wilson pointed to Cheney and his staff as the source of the phony intelligence. It was those guys over in the Executive Office Building who made repeated trips to CIA headquarters, pushing "intelligence" that seemed to confirm the neoconservative case for war. Greeks bearing gifts, as it turned out.
The War Party built the case for war by doing an end run around the CIA, the DIA, and the established intelligence structure. They set up their own intelligence operation, the "Office of Special Plans," described by Seymour Hersh in the New Yorker:
"They call themselves, self-mockingly, the Cabal – a small cluster of policy advisers and analysts now based in the Pentagon's Office of Special Plans. In the past year, according to former and present Bush Administration officials, their operation, which was conceived by Paul Wolfowitz, the Deputy Secretary of Defense, has brought about a crucial change of direction in the American intelligence community.
These advisers and analysts, who began their work in the days after September 11, 2001, have produced a skein of intelligence reviews that have helped to shape public opinion and American policy toward Iraq. … By last fall, the operation rivaled both the CIA and the Pentagon's own Defense Intelligence Agency, the DIA, as President Bush's main source of intelligence regarding Iraq's possible possession of weapons of mass destruction and connection with Al Qaeda."
Run by Strauss scholar and author Abram Shulsky, and presided over by Undersecretary of Defense for Policy Douglas Feith, a militant neocon and supporter of Israel's Likud party, the OSP was the nerve center of the War Party inside the U.S. government.
Feith was a co-author, along with Richard Perle, of the seminal 1996 paper "A Clean Break," that prefigured the invasion of Iraq. This paper, written for then Prime Minister Benjamin Netanyahu, argued that Syria is the main danger to Israel – and that the road to Damascus runs through Baghdad.
This crew pressed for including the alleged meeting of Mohammed Atta with an Iraqi intelligence officer in Prague in Colin Powell's pre-war presentation to the UN, but Powell refused to do so when the CIA vetoed the story as discredited. The OSP also pushed the alleged Al-Qaeda connection, a case built on a very slender reed. Is it unreasonable to suppose that the Niger uranium story also came from this crew? I'm not alone in my suspicion.
But the real source of the OSP's pervasive influence was the patronage of high administration officials. Julian Borger, writing in the Guardian, nabs the Vice President:
"The president's most trusted adviser, Mr Cheney, was at the shadow network's sharp end. He made several trips to the CIA in Langley, Virginia, to demand a more 'forward-leaning' interpretation of the threat posed by Saddam. When he was not there to make his influence felt, his chief of staff, Lewis 'Scooter' Libby, was. Such hands-on involvement in the processing of intelligence data was unprecedented for a vice-president in recent times, and it put pressure on CIA officials to come up with the appropriate results."
Another Cheney link is OSP overseer William Luti, a former Cheney advisor. Luti came out for war with Iraq early on, and is also head of the Defense Department's post-war Iraq planning group. As Jim Lobe of Interpress News Service writes:
"In some cases, NESA [Near East and South Asia bureau] and OSP even prepared memos specifically for Cheney and Libby, something unheard of in previous administration because the lines of authority in the Vice President's office and the Pentagon are entirely separate. 'Luti sometimes would say, 'I've got to do this for Scooter', said [former NESA employee Karen] Kwiatkowski. 'It looked like Cheney's office was pulling the strings.'"
The Vice President's DNA imprint is all over the OSP, and the Niger uranium fiasco. NESA is headed up by his daughter, Elizabeth. Those infamous sixteen words that got into the President's State of the Union – the single most important speech on our chief executive's calendar – had to be retracted by a White House that rarely admits error. Somebody is going to pay, and my guess is it's going to be the Vice President and/or Libby.
Libby has already been implicated as the Spy-gate leaker by Larry Johnson, a former CIA officer who worked with Ms. Plame while she was in training. As Marc Rich's lawyer for 15 years, Libby has some interesting connections. The fugitive billionaire who renounced his U.S. citizenship rather than face prosecution for fraud and tax evasion secured his pardon due to an extraordinary campaign engineered, in large part, by Libby.
Intense pressure was brought to bear on then President Clinton, who was heavily lobbied by Ehud Barak and American Jewish leaders. This campaign was motivated, at least in part, by services Rich reportedly rendered to Israeli intelligence.
Libby's links to the pro-Israel, pro-war network in the U.S. government, and the OSP, point to him as the linchpin of a sophisticated con game, with the President being spoon-fed flat-out false information. The American government, and the American people, were neo-conned into war. And now there is hell to pay.
But Libby and his minions are just the front men for the main operation. After all, they didn't forge the Niger-uranium papers themselves, but somebody did. We are supposed to believe, as ABC News "reported," that the Niger uranium forgeries were authored by "an underpaid African diplomat who was stationed in Rome." He "created bogus documents, which he then sold to the Italian secret service."
But that doesn't jibe with the known facts. The trail begins with a January 2001 break-in at Niger's diplomatic mission in Rome: the place is riffled, files are scattered about, no serious damage done. Police theorize that the purpose was to gain official seals and other information essential to forging documents. A few months later, the Niger-uranium documents show up. Do you suppose that maybe – just maybe – these two events are somehow connected?
The story that an "underpaid" African diplomat peddled these bogus papers to Italian intelligence turns out to have been itself bogus. The Italian intelligence agency denies playing any role: it turns out that an Italian journalist, Elisabetta Burba, of Panorama magazine, brought them to the U.S. embassy, after declining to publish an article about them because she doubted their authenticity. She got the papers, she says, from a "usually reliable source."
The break-in, the forgery, the mysterious circumstances that permitted a fraud to go undetected at the highest levels of our intelligence-gathering apparatus: all point to a well-coordinated scheme to drag us into war, a state-sponsored covert operation that succeeded all too well. As Karen Kwiatkowski, a former Pentagon analyst, testifies:
"Kwiatkowski said she could not confirm published reports that OSP worked with a similar ad hoc group in Israeli Prime Minister Ariel Sharon's office. But she recounts one incident in which she helped escort a group of half a dozen Israelis, including several generals, from the first floor reception area to Feith's office.
'''We just followed them, because they knew exactly where they were going and moving fast.'
"When the group arrived, she noted the book which all visitors are required to sign under special regulations that took effect after the Sep. 11, 2001 attacks. 'I asked his secretary, 'Do you want these guys to sign in'? She said, 'No, these guys don't have to sign in.' ' It occurred to her, she said, that the office may have deliberately not wanted to maintain a record of the meeting."
Robert Dreyfuss, writing in The Nation, cites a highly placed former intelligence official who points the finger directly at Israel:
"According to the former official, also feeding information to the Office of Special Plans was a secret, rump unit established last year in the office of Prime Minister Ariel Sharon of Israel. This unit, which paralleled Shulsky's – and which has not previously been reported – prepared intelligence reports on Iraq in English (not Hebrew) and forwarded them to the Office of Special Plans.
It was created in Sharon's office, not inside Israel's Mossad intelligence service, because the Mossad – which prides itself on extreme professionalism – had views closer to the CIA's, not the Pentagon's, on Iraq. This secretive unit, and not the Mossad, may well have been the source of the forged documents purporting to show that Iraq tried to purchase yellowcake uranium for weapons from Niger in West Africa, according to the former official."
But how did they get taken seriously enough to be included in the President's State of the Union speech?
It may well be treason, as many people say, to expose an undercover U.S. intelligence officer. So what do we call funneling disinformation to the President on behalf of a foreign power – high treason?
If Libby is implicated as having anything to do with Plame's "outing," then that, in turn, implicates Cheney, who must take responsibility. The Vice President's resignation, under these circumstances, is a distinct possibility.
Will we soon hear an announcement that he's retiring "for health reasons"? There could soon be an empty spot on the national Republican ticket.
Many people have compared Spy-gate to the scandal that brought down Richard Nixon, and the parallels are certainly striking. Watergate, too, started in a small way, with a petty, even quite stupid slip-up: a bungled break-in at Democratic party headquarters. In Spy-gate, as in the Watergate scandal, a towering hubris, a vindictive mindset, and the attempted cover-up will be the conspirators' undoing.
As the scandal metastasizes, and threatens to engulf the White House, one might hope this administration would learn the lesson of history. Before the Democrats can take hold of this, and use it, George W. Bush must launch a preemptive strike against the cancer eating away at the vitals of his presidency.
Ditch the neocons, Mr. President, and get us out of the quagmire they created – before it's too late. Or ignore all such advise until it is too late and the House plays gotcha; that’s what I think you ought to do, consistence you know.
On July 2, President George W. Bush sent a clemency order (below) to the Justice Department commuting the 30-month prison term of I. Lewis "Scooter" Libby ordered June 4 by Judge Reggie Walton. A $250,000 fine still stands for now, but the president may yet grant the former White House official a full pardon.
A Decision Made Largely Alone
With the sentencing of I. Lewis "Scooter" Libby, Fitzgerald has apparently finished his work, which was, not to put too fine a point on it, to make a mountain out of a molehill.
At the urging of the liberal press (especially the New York Times), he was appointed to look into a run-of-the-mill leak and wound up prosecuting not the leaker -- Richard Armitage of the State Department -- but Libby, convicted in the end of lying.
This is not an entirely trivial matter since government officials should not lie to grand juries, but neither should they be called to account for practicing the dark art of politics. As with sex or real estate, it is often best to keep the lights off.
The upshot was a train wreck -- mile after mile of shame, infamy, embarrassment and occasional farce, all of it described in the forthcoming "Off the Record," a vigorously written account of what went wrong, by Norman Pearlstine, Time Inc.'s former editor in chief. The special counsel used the immense power of the government to jail Judith Miller and to compel other journalists, including Time's Matt Cooper, to suspend their various and sacred vows of silence just so they could, understandably, avoid jail.
The press held itself up to mockery, wantonly promising confidentiality, anonymity -- what's the diff, anyway? -- and virtual life after death to anyone with a piece of gossip to peddle. Much heroic braying turned into cries for mercy as the government bore down. As any prosecutor knows -- and Martha Stewart can attest -- white-collar types tend to have a morbid fear of jail. Still, I wouldn’t have answered the questions either, even if asked nice.
As Fitzgerald worked his wonders, threatening jail and going after government gossips with splendid pluck, many opponents of the Iraq war cheered. They thought -- if "thought" can be used in this context -- that if the thread was pulled on who had leaked the identity of Valerie Plame to Robert D. Novak, the effort to snooker an entire nation into war would unravel and this would show . . . who knows something? Well... we know who and so far it hasn’t done us any good. And as for looking bad; let’s face it we’re just hungry for justice, and oh yes, a pound of flesh, preferably raw and dripping blood. Now there’s honesty.
For some odd reason, the same people who were so appalled about government snooping, the USA Patriot Act and other such threats to civil liberties cheered as the special prosecutor weed-whacked the press, jailed a reporter and now will send a previously obscure government official to prison for 30 months. It’s the scent of blood thing…the equivalent of being in political heat in this town.
This is precisely the sort of investigation that Jackson was warning about. It would not have been conducted if, say, the Iraq war had ended with 300 deaths and the mission had really been accomplished. An unpopular war produced the popular cry for scalps and, in Libby's case, the additional demand that he express contrition -- a vestigial Stalinist-era yearning for abasement. No one has yet explained, though, how Libby can express contrition and still appeal his conviction. No matter. Antiwar sanctimony excuses the inexplicable, the President pardons or commutes all, and the game goes on.
Accountability is one thing. By all means, let Congress investigate and conduct oversight hearings with relish and abandon. But a prosecution is a different matter. It entails the government at its most coercive -- a power so immense and sometimes so secretive that it poses much more of a threat to civil liberties, including freedom of the press, than anything in the interstices of the scary Patriot Act. The mere arrival of a form letter from the IRS will give any sane person a touch of angina.
I don't expect George Bush to appreciate this. He is the privileged son of a privileged son, and he fears nothing except, probably, doubt.
But the rest of us ought to consider what Fitzgerald has wrought and whether we are better off for his efforts. I have come to hate the war and I cannot approve of lying under oath -- not by Scooter, not by Bill Clinton, not by anybody.
This is a mess. Should Libby be pardoned? Should his sentence be commuted?
Yesterday President Bush commuted the 30-month prison sentence of Scooter Libby, Dick Cheney's former chief of staff who was convicted of perjury, making false statements, and obstruction of justice. At a press conference today, Bush said he won't rule out pardoning Libby at some point as well.
“Libby was convicted on March 6 of obstruction of justice, perjury, and making false statements to the FBI. Special prosecutor Patrick Fitzgerald intends to continue to fight efforts by Libby's lawyers to appeal the conviction to the D.C. Circuit Court.”
All the papers lead with President Bush commuting Scooter Libby's 30-month prison sentence. Vice President Cheney's former chief of staff won't have to serve a day in prison but his conviction for perjury and obstruction of justice in the CIA leak case still stands, which means he has to pay the $250,000 fine and will be on probation for two years. The president made his announcement after a group of judges denied Libby's request to stay out of prison while he appealed. In a written statement, Bush said he respects "the jury's verdict" but characterized the prison sentence as "excessive."
USA Today notes up high that Libby never filed a formal request and Bush didn't discuss the commutation with the Justice Department. In fact, many Justice officials were already on their way out of the office when they got the news on their Blackberries.
"They were floored," says the New York Times. By all accounts, Bush appears to have come to the decision mostly on his own and consulted few of his close advisers, says the Washington Post in a separate Page One piece. In pursuing the strategy the president may have been trying to avoid the accusation that he had succumbed to political pressure.
Both the NYT and WP point out that it's unclear what kind of role Cheney played in the process. The Wall Street Journal says the decision could affect Republican presidential candidates who may find themselves in the position of having to "defend the commutation for the remainder of the campaign." The Los Angeles Times notes that while the decision can't be overturned, "It can be criticized ... and Democrats were quick to do so."
Everyone quotes Senate Majority Leader Harry Reid saying that Libby's conviction "was the one faint glimmer of accountability for White House efforts to manipulate intelligence." And proving that lawmakers can drop pop culture references like the best of them, Sen. Richard Durbin of Illinois noted that "even Paris Hilton had to go to jail." Several Democratic presidential candidates joined in and also criticized the decision. (Sound bite heaven)
For their part, conservatives were mostly pleased, although some expressed disappointment that Bush didn't issue a full pardon. But, as several note, Bush could still do that at a later date. And you can put down your bets on a sure thing right here.
Special Counsel Patrick Fitzgerald issued a statement disputing Bush's characterization of the sentence as excessive saying that "an experienced federal judge … imposed a sentence consistent with the applicable laws." The Post quotes a law professor who calls the commutation "hypocritical" since Bush's Justice Department often argues against attempts by judges and lawyers to give lower sentences than those outlined by federal guidelines. God, don’t just love all the righteous indignation…talk, talk, talk, squawk, squawk, squawk!
The NYT quotes from Justice Department standards that say "requests for commutation generally are not accepted unless and until a person has begun serving that sentence." But, of course, the president has wide latitude in these matters. BuShit!!!
Everyone points out, as was often talked about in the will-he-or-won't-he days, Bush seems to have come to the conclusion that he didn't have much to lose by commuting Libby's sentence.
Those who criticize the decision are not fans of the president, so he may have decided that he needed to appeal to the base, especially after their widespread anger over the immigration bill.
Several of the editorial pages weigh in, and they aren't too happy with the decision. The WP agrees with the president that Libby's sentence was excessive, "but reducing the sentence to no prison time at all … is not defensible."
The NYT is more critical and says the commutation "only underscored the way this president is tough on crime when it's committed by common folk." The WSJ calls Bush's statement "another profile in non-courage" and says "Libby deserved better from the president whose policies he tried to defend when others were running for cover." And some folks wonder why the rest of us are pissed off to the point of revolution?
The president cannot pardon someone for a state offense. Article II, Section 2 of the Constitution gives the president the "Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." (For a discussion of what "except in cases of impeachment means" and whether the president can pardon himself, read this "Explainer.") That means the president can pardon only for federal crimes.
Now that would be good…just picture Bush Impeached; I do it regularly…he’s ready to leave The White House and he calls out to Laura: “I’ll be right with you honey, just have to put my signature on my pardon and leave it on the desk”. Even fantasies around here are insane anymore.
What's stunning about President Bush's commutation of Scooter Libby's sentence, if you're a criminal defense lawyer, isn't that it was politically motivated. Or that it tramples on principles of equal justice. Or even that it is the latest in a long string of Bush administration assaults on the rule of law.
Rather, what's astonishing is that the factors Bush relied on in commuting Libby's sentence are the same ones that the administration has aggressively sought to preclude judges from considering when imposing sentences on everyone else.
The specific bases Bush gave for the commutation are that the 30-month prison sentence was too harsh for Libby's crime, that he was a first-time offender who had a long history of public service, that his conviction had already damaged his career and reputation and caused his wife and young children to suffer, and that sentencing Judge Reggie Walton rejected the advice of the probation office, which recommended that he consider "factors that could have led to a sentence of home confinement or probation." Defense attorneys would generally agree that these are all good reasons for reducing Libby's sentence—particularly in light of the nature of his offense. They would also agree that 30 months was too long in the first place to serve for the nonviolent crime of making false statements.
The Bush administration, however, has consistently maintained that at sentencing, judges should be precluded from thinking about precisely the sort of individual circumstances the president raised in lending a hand to Libby. Last month, Attorney General Alberto Gonzales proposed legislation that would prevent judges from relying on anything outside the federal sentencing guidelines as the basis for a sentence more lenient than the range that the guidelines provide for. Only the rarest of exceptions to this rule would be permitted.
That proposed legislation would effectively reverse the 2005 Supreme Court decision in United States v. Booker, which authorized sentencing judges to consider factors like a defendant's life story and the nature and circumstances of his or her offense. Gonzales' bill would also make the federal guidelines, which the Supreme Court found unconstitutional, essentially mandatory again—again leaving judges less leeway for showing mercy.
Consider, in that light and in comparison to Libby, the case of United States v. Rita, which the Supreme Court decided two weeks ago. As Douglas Berman describes at Sentencing Law and Policy, Victor Rita also got "caught up in a criminal investigation and ultimately was indicted on five felony counts based on allegations that"—like Libby—"he lied while giving grand jury testimony." Rita was convicted.
At sentencing, he argued that he should receive a sentence below the range in the federal guidelines because he was elderly and sick, had served for 24 years as a Marine, including tours in Vietnam and the first Gulf War, and was vulnerable to abuse in prison because he'd worked in criminal justice on behalf of the government.
After receiving a within-the-guidelines sentence of 33 months, Rita appealed on the ground that the sentence was unreasonable given the nature of his offense and his personal circumstances. The Bush administration opposed Rita's appeal. The government argued that 33 months was reasonable simply because it complied with the federal guidelines.
And the Supreme Court agreed, affirming Rita's sentence. Berman lists other cases in which Bush prosecutors demanded and got harsh sentences for minor crimes committed by sometimes-sympathetic defendants.
The point is that this administration has steadfastly asserted its belief in uniform sentencing. Oh no; I feel the sickening urge to go on an “anti situational ethics, simple principled world of Justice”, but I won’t. I’ve said it all and it would just be a matter of saying it yet another way. And pleading for consistency from this administration is like whistling Dixie up a dead horse’s…well you know, an ugly proposition and an utter waste of time and energy.
Nationwide, the Department of Justice requires prosecutors to advocate for sentences that adhere to the guidelines because, the administration argues, this is the best way to narrow sentencing disparities among defendants who commit similar crimes.
Pardons and sentence commutations are by definition tickets that are good for only one ride, special treatment for special defendants.
And yet, one can't help asking, what of all those fears about disparity?
In the weeks and months to come, defense attorneys across the country won't be able to resist tapping away at their keyboards, arguing that their clients' individual circumstances call for sentencing breaks, just like Libby's did.
It probably won't work. But the administration's inconsistency is so glaring—and so perfectly illustrates the flaw of harsh and mandatory sentencing regimes—that to point it out to judges will be irresistible.
President Bush's commutation of I. Lewis "Scooter" Libby's 30-month prison sentence will likely prompt many people with politics similar to my own to cry bloody murder.
It will be called a cover-up. It will be called a payoff for Libby's failure to implicate Vice President Dick Cheney, and perhaps even Bush himself, more directly in the Plamegate scandal.
It will be compared to President Ford's pardon of Richard Nixon, and to Bush père's pardon of former Defense Secretary Caspar Weinberger a mere 12 days before Weinberger was to go on trial for perjury in connection with the Iran-contra scandal.
Both of these actions were wrong. But the comparison is a weak one.
I don't take lightly the fact that Libby lied to federal prosecutors about his role in unmasking Valerie Plame as a covert CIA employee. The underlying offense probably wasn't illegal—because Libby probably didn't understand that Plame's identity was a government secret—but it was nonetheless disgraceful.
Libby understood that, and that's why he committed perjury. His prosecution was appropriate because Bush administration officials need to know that they are not above the law. Libby's trial and conviction, I hope, got that message across to at least some of them.
But Judge Reggie Walton went overboard in sentencing Libby to 30 months. This was about twice as long as the prison term recommended by the court's probation office, and if Libby hadn't been a high-ranking government official, there's a decent chance he would have gotten off with probation, a stiff fine, and likely disbarment.
Walton gave Libby 30 months and a $250,000 fine, then further twisted the knife by denying Libby's routine request to delay the sentence while his lawyers appealed it. (Libby was duly assigned the federal prison register number 28301-016, but Libby's lawyers managed to move quickly enough to keep Libby out of the slammer until his appeal was denied on July 2, the same day Bush commuted his sentence.)
The voluminous pleas for leniency from Libby's A-list friends annoyed Walton, who erred on the side of severity not in spite of Libby's high position in government but because of it.
Walton wanted to make an example of him. This really is a reflection of the growing rage harbored towards this administration by the American people, and I for one am not displeased with Walton as he forced the President’s hand at a most fortuitous moment in the struggle for Impeachment.
Bur, what's the matter with that? Two words: Bill Clinton. No fair-minded person can deny that the previous president committed perjury about Monica Lewinsky while serving in the Oval Office. The country knew it, and it let him get away with it.
Does that mean no government official should ever again be prosecuted for perjury? Of course not. But it does mean Walton should have wondered whether he was imposing a double standard in treating Libby more harshly because Libby worked in the White House.
Is it really fair to treat White House aides more harshly than ordinary citizens when presidents get off scot-free?
It would have been wrong for Bush to pardon Libby, as many Republicans urged him to do. He’ll get around to that at a later time, as sort a cleanup action.
Libby committed a crime, and it wouldn't have been right for Bush to do anything to minimize the attendant disgrace or to lighten Libby's $250,000 burden.
"The reputation he gained through his years of public service and professional work in the legal community is forever damaged," Bush said. And so it should be. But that is never true in this town of such figures; it’s just a bump in the road.
It’s sort of like he was a “bad boy” got caught scolded, not even sent to his room and soon he will be forgiven all, until the day he writes his book.
Bush did not intervene to spare Libby further disgrace, as Ford did with the Nixon pardon, and he didn't pre-empt a prosecution that might reveal embarrassing facts about himself, as Bush's father did.
He waited until it was all over, and he acted in many eyes, “humanely”. Yes, it was inconsistent with his past indifference in such matters, particularly when he was governor of Texas.
Article II, Section 2 of the Constitution gives the president the power to pardon. Virtually every presidential pardon comes in response to a pardon petition, filed with a special Department of Justice office. If the request has merit, the office interviews the prosecuting attorney, sentencing judge, and other law enforcement officials involved with each case.
FBI investigators also compile a dossier on the applicant. The DOJ then completes a report on the request and offers a recommendation to the president on whether or not to grant a pardon.
The final decision belongs to the president, who could theoretically pardon an individual who had not filed a petition.
Who deserves a pardon? According to Department of Justice policy, presidential pardons are not meant to correct some judicial wrong, such as a false conviction or an unfair sentence (that's what the judicial appeals process is for).
Rather, pardons go to those who have atoned for their crimes by subsequent good behavior.
Presidents occasionally shorten the sentence of model prisoners who have demonstrated extraordinary remorse. But most presidential pardons go to people who have already completed their sentences and who can demonstrate that they've become honest citizens.
In these cases, the pardon allows the recipient to hold certain jobs (law-enforcement and many professions) and exercise certain privileges (voting and carrying a gun) denied to un-pardoned criminals.
Occasionally, a president will pardon someone who hasn't even been convicted.
Anticipatory pardons of this sort are generally given in the belief that they serve some national interest, such as when President Ford pardoned Richard Nixon or when President Carter pardoned the Vietnam draft-evaders.
President Bush also pardoned Caspar Weinberger after he'd been indicted, but before he'd been tried, which effectively short-circuited a trial.
It makes sense that this power rests with the executive rather than the judicial branch, since it's an explicitly political decision.
Still, pardons of any sort are very rare. Clinton has issued only 107 in six years, despite more than 4,000 requests.
This is a whole arena one could fight over forever and currently “We The People” are divided once again on an issue that we should be united on into those who wanted the jail time as some small morsel of justice and those who say: “what the hell; we got enough mileage out of this and is was all predictable anyway”.
Let me preface my remarks and research with the general observation that this entire matter has been a train wreck with mile upon mile of sham, shame, infamy, embarrassment, farce, incompetence, ineptitude and political theater, all of which have served to knock the real issues off the rail side and out into the shadowy protective cover of some forgotten over grown forest of diversion.
This matter really needs some clarification and perspective.
The Valerie Plame Affair (Wikipedia Outline…clean)
It all started out when…(sorry for the review but it is necessary for some, to return to the subject of former CIA employee Valerie Plame because of the confusion and misinformation and conjecture that has muddied the debate in Washington and her story and that of her husband, former ambassador Joseph C. Wilson IV, over the past three years.
But all those who have opined on this affair ought to simply take note of the not-so-surprising disclosure that the primary source of the newspaper column in which Ms. Plame's cover as an agent was purportedly blown in 2003 was former deputy secretary of state Richard L. Armitage. OK, that is a clearly defined fact, and is he in trouble…no! Hell he’s not even on the radar screen any longer.
Mr. Armitage was one of the Bush administration officials who supported the invasion of Iraq only reluctantly. He was a political rival of the White House and Pentagon officials who championed the war and whom Mr. Wilson accused of twisting intelligence about Iraq and then plotting to destroy him. Unaware that Ms. Plame's identity was classified information, Mr. Armitage reportedly passed it along to columnist Robert D. Novak "in an offhand manner, virtually as gossip," according to a story the Post's R. Jeffrey Smith, who quoted a former colleague of Mr. Armitage.
It follows, or should have followed, that one of the most sensational charges leveled against the Bush White House -- that it orchestrated the leak of Ms. Plame's identity to ruin her career and thus punish Mr. Wilson -- is untrue. (Well things are not that simple)
The partisan clamor that followed the raising of that allegation by Mr. Wilson in the summer of 2003 led to the appointment of a special prosecutor, a costly and prolonged investigation, and the indictment of Vice President Cheney's chief of staff, I. Lewis "Scooter" Libby, on charges of perjury.
All of that could have been avoided had Mr. Armitage's identity been known three years ago.
That's not to say that Mr. Libby and other White House officials are blameless.
As prosecutor Patrick J. Fitzgerald reported, when Mr. Wilson charged that intelligence about Iraq had been twisted to make a case for war, Mr. Libby and Mr. Cheney reacted by inquiring about Ms. Plame's role in recommending Mr. Wilson for a CIA-sponsored trip to Niger, where he investigated reports that Iraq had sought to purchase uranium.
Mr. Libby then allegedly disclosed Ms. Plame's identity to journalists and lied to a grand jury when he said he had learned of her identity from one of those reporters. Mr. Libby and his boss, Mr. Cheney, were trying to discredit Mr. Wilson; if Mr. Fitzgerald's account is correct, they were careless about handling information that was classified. I am trying to be even handed here, but “Mr. Calculation Cheney”, careless; I don’t think so, even in arrogance and advocacy he is able to consistently keep his eye on the prize. (OK, that’s as close to a “Fair and Balanced disclaimer” as I can manage)
Nevertheless, if you are an administration supporter your spin and diversion line, finger pointing blame fixing knee jerk response is: “it now appears that the person most responsible for the end of Ms. Plame's CIA career is Mr. Wilson. Mr. Wilson chose to go public with an explosive charge, claiming -- falsely, as it turned out -- that he had debunked reports of Iraqi uranium-shopping in Niger and that his report had circulated to senior administration officials”. (Accepted; Wilson is not squeaky clean, but then who is around this town?)
He ought to have expected that both those officials and journalists such as Mr. Novak would ask why a retired ambassador would have been sent on such a mission and that the answer would point to his wife. He diverted responsibility from himself and his false charges by claiming that President Bush's closest aides had engaged in an illegal conspiracy. It's unfortunate that so many people took him seriously, but they did. No surprise; folks around here will believe anything if sounds like dirt.
So what is/was this really all about? L 'affaire Plame is about breaking the law, about arrogance, about the ordinary viciousness that suffuses the corridors of power in Washington – but its real significance is overlooked in the frenzy to find the perpetrator and tie him or her to the White House. The problem with this theory is that George W. Bush is the biggest victim of this incident. I guess I should care in terms of accuracy of reporting, but he brings so much of this garbage heaping upon himself. I’ve acknowledged the fact, and that is candidly, all the sympathy I can muster…none.
I digress for a moment….
After all, it was the President who was made to look like a fool when, in his State of the Union speech, he referred to the now-discredited story about Iraq seeking to purchase "yellowcake" uranium to build a nuclear bomb. When Joe Wilson's op ed piece appeared in the New York Times, describing his trip to Niger on behalf of the CIA, and the complete lack of any real evidence for Bush's contention, it must have occurred to Team Bush that they'd been set up, big time. Remember, the sole "evidence" supporting the Niger uranium angle had been a set of papers that turned out to be crude forgeries.
"These documents are so bad," a senior IAEA official told the New Yorker, "that I cannot imagine that they came from a serious intelligence agency. It depresses me, given the low quality of the documents, that it was not stopped. At the level it reached, I would have expected more checking." A "former high-level intelligence official" interviewed by the New Yorker is sure it was an inside job "Somebody deliberately let something false get in there. It could not have gotten into the system without the agency being involved. Therefore it was an internal intention. Someone set someone up."
Never mind, for the moment, who spilled the beans on Plame. The real question is: who set up the President of the United States by feeding him forged documents and passing them off as authentic? Because the answer to both questions is likely to be the same.
The big mystery of the Valerie Plame affair was: why did they do it? What possible motive could a top U.S. government official have in "outing" a CIA officer engaged in the essential work of nuclear nonproliferation?
In the context of Robert Novak's column, which caused the ruckus to begin with, it “looked” like they were trying to discredit Wilson by implying he got the assignment on account of nepotism: Plame is Wilson's wife.
But the primary effects of naming her were two-fold, neither of which had much to do with questioning Wilson's credentials: it ended her career as an undercover operative, and warned off anybody else thinking of going public with evidence that the War Party had twisted intelligence estimates to make the case for war in Iraq. Punish, and deter. Ahh, now we’re getting somewhere.
But what, exactly, were they trying to deter? What was it about Wilson's mission to Niger that provoked such extreme retaliation? They clearly knew what they were doing was illegal, (there’s that word again), and high risk: outing a CIA operative is a felony punishable by up to 10 years in prison and a $50,000 fine. So why take the chance? (Sorry, but we all know now that those prison terms and fines don’t mean shit!)
The answer is because it throws the spotlight on an even bigger crime, the Niger-uranium forgeries – and links them to the office of the Vice President.
In his op ed, Wilson pointed to Cheney and his staff as the source of the phony intelligence. It was those guys over in the Executive Office Building who made repeated trips to CIA headquarters, pushing "intelligence" that seemed to confirm the neoconservative case for war. Greeks bearing gifts, as it turned out.
The War Party built the case for war by doing an end run around the CIA, the DIA, and the established intelligence structure. They set up their own intelligence operation, the "Office of Special Plans," described by Seymour Hersh in the New Yorker:
"They call themselves, self-mockingly, the Cabal – a small cluster of policy advisers and analysts now based in the Pentagon's Office of Special Plans. In the past year, according to former and present Bush Administration officials, their operation, which was conceived by Paul Wolfowitz, the Deputy Secretary of Defense, has brought about a crucial change of direction in the American intelligence community.
These advisers and analysts, who began their work in the days after September 11, 2001, have produced a skein of intelligence reviews that have helped to shape public opinion and American policy toward Iraq. … By last fall, the operation rivaled both the CIA and the Pentagon's own Defense Intelligence Agency, the DIA, as President Bush's main source of intelligence regarding Iraq's possible possession of weapons of mass destruction and connection with Al Qaeda."
Run by Strauss scholar and author Abram Shulsky, and presided over by Undersecretary of Defense for Policy Douglas Feith, a militant neocon and supporter of Israel's Likud party, the OSP was the nerve center of the War Party inside the U.S. government.
Feith was a co-author, along with Richard Perle, of the seminal 1996 paper "A Clean Break," that prefigured the invasion of Iraq. This paper, written for then Prime Minister Benjamin Netanyahu, argued that Syria is the main danger to Israel – and that the road to Damascus runs through Baghdad.
This crew pressed for including the alleged meeting of Mohammed Atta with an Iraqi intelligence officer in Prague in Colin Powell's pre-war presentation to the UN, but Powell refused to do so when the CIA vetoed the story as discredited. The OSP also pushed the alleged Al-Qaeda connection, a case built on a very slender reed. Is it unreasonable to suppose that the Niger uranium story also came from this crew? I'm not alone in my suspicion.
But the real source of the OSP's pervasive influence was the patronage of high administration officials. Julian Borger, writing in the Guardian, nabs the Vice President:
"The president's most trusted adviser, Mr Cheney, was at the shadow network's sharp end. He made several trips to the CIA in Langley, Virginia, to demand a more 'forward-leaning' interpretation of the threat posed by Saddam. When he was not there to make his influence felt, his chief of staff, Lewis 'Scooter' Libby, was. Such hands-on involvement in the processing of intelligence data was unprecedented for a vice-president in recent times, and it put pressure on CIA officials to come up with the appropriate results."
Another Cheney link is OSP overseer William Luti, a former Cheney advisor. Luti came out for war with Iraq early on, and is also head of the Defense Department's post-war Iraq planning group. As Jim Lobe of Interpress News Service writes:
"In some cases, NESA [Near East and South Asia bureau] and OSP even prepared memos specifically for Cheney and Libby, something unheard of in previous administration because the lines of authority in the Vice President's office and the Pentagon are entirely separate. 'Luti sometimes would say, 'I've got to do this for Scooter', said [former NESA employee Karen] Kwiatkowski. 'It looked like Cheney's office was pulling the strings.'"
The Vice President's DNA imprint is all over the OSP, and the Niger uranium fiasco. NESA is headed up by his daughter, Elizabeth. Those infamous sixteen words that got into the President's State of the Union – the single most important speech on our chief executive's calendar – had to be retracted by a White House that rarely admits error. Somebody is going to pay, and my guess is it's going to be the Vice President and/or Libby.
Libby has already been implicated as the Spy-gate leaker by Larry Johnson, a former CIA officer who worked with Ms. Plame while she was in training. As Marc Rich's lawyer for 15 years, Libby has some interesting connections. The fugitive billionaire who renounced his U.S. citizenship rather than face prosecution for fraud and tax evasion secured his pardon due to an extraordinary campaign engineered, in large part, by Libby.
Intense pressure was brought to bear on then President Clinton, who was heavily lobbied by Ehud Barak and American Jewish leaders. This campaign was motivated, at least in part, by services Rich reportedly rendered to Israeli intelligence.
Libby's links to the pro-Israel, pro-war network in the U.S. government, and the OSP, point to him as the linchpin of a sophisticated con game, with the President being spoon-fed flat-out false information. The American government, and the American people, were neo-conned into war. And now there is hell to pay.
But Libby and his minions are just the front men for the main operation. After all, they didn't forge the Niger-uranium papers themselves, but somebody did. We are supposed to believe, as ABC News "reported," that the Niger uranium forgeries were authored by "an underpaid African diplomat who was stationed in Rome." He "created bogus documents, which he then sold to the Italian secret service."
But that doesn't jibe with the known facts. The trail begins with a January 2001 break-in at Niger's diplomatic mission in Rome: the place is riffled, files are scattered about, no serious damage done. Police theorize that the purpose was to gain official seals and other information essential to forging documents. A few months later, the Niger-uranium documents show up. Do you suppose that maybe – just maybe – these two events are somehow connected?
The story that an "underpaid" African diplomat peddled these bogus papers to Italian intelligence turns out to have been itself bogus. The Italian intelligence agency denies playing any role: it turns out that an Italian journalist, Elisabetta Burba, of Panorama magazine, brought them to the U.S. embassy, after declining to publish an article about them because she doubted their authenticity. She got the papers, she says, from a "usually reliable source."
The break-in, the forgery, the mysterious circumstances that permitted a fraud to go undetected at the highest levels of our intelligence-gathering apparatus: all point to a well-coordinated scheme to drag us into war, a state-sponsored covert operation that succeeded all too well. As Karen Kwiatkowski, a former Pentagon analyst, testifies:
"Kwiatkowski said she could not confirm published reports that OSP worked with a similar ad hoc group in Israeli Prime Minister Ariel Sharon's office. But she recounts one incident in which she helped escort a group of half a dozen Israelis, including several generals, from the first floor reception area to Feith's office.
'''We just followed them, because they knew exactly where they were going and moving fast.'
"When the group arrived, she noted the book which all visitors are required to sign under special regulations that took effect after the Sep. 11, 2001 attacks. 'I asked his secretary, 'Do you want these guys to sign in'? She said, 'No, these guys don't have to sign in.' ' It occurred to her, she said, that the office may have deliberately not wanted to maintain a record of the meeting."
Robert Dreyfuss, writing in The Nation, cites a highly placed former intelligence official who points the finger directly at Israel:
"According to the former official, also feeding information to the Office of Special Plans was a secret, rump unit established last year in the office of Prime Minister Ariel Sharon of Israel. This unit, which paralleled Shulsky's – and which has not previously been reported – prepared intelligence reports on Iraq in English (not Hebrew) and forwarded them to the Office of Special Plans.
It was created in Sharon's office, not inside Israel's Mossad intelligence service, because the Mossad – which prides itself on extreme professionalism – had views closer to the CIA's, not the Pentagon's, on Iraq. This secretive unit, and not the Mossad, may well have been the source of the forged documents purporting to show that Iraq tried to purchase yellowcake uranium for weapons from Niger in West Africa, according to the former official."
But how did they get taken seriously enough to be included in the President's State of the Union speech?
It may well be treason, as many people say, to expose an undercover U.S. intelligence officer. So what do we call funneling disinformation to the President on behalf of a foreign power – high treason?
If Libby is implicated as having anything to do with Plame's "outing," then that, in turn, implicates Cheney, who must take responsibility. The Vice President's resignation, under these circumstances, is a distinct possibility.
Will we soon hear an announcement that he's retiring "for health reasons"? There could soon be an empty spot on the national Republican ticket.
Many people have compared Spy-gate to the scandal that brought down Richard Nixon, and the parallels are certainly striking. Watergate, too, started in a small way, with a petty, even quite stupid slip-up: a bungled break-in at Democratic party headquarters. In Spy-gate, as in the Watergate scandal, a towering hubris, a vindictive mindset, and the attempted cover-up will be the conspirators' undoing.
As the scandal metastasizes, and threatens to engulf the White House, one might hope this administration would learn the lesson of history. Before the Democrats can take hold of this, and use it, George W. Bush must launch a preemptive strike against the cancer eating away at the vitals of his presidency.
Ditch the neocons, Mr. President, and get us out of the quagmire they created – before it's too late. Or ignore all such advise until it is too late and the House plays gotcha; that’s what I think you ought to do, consistence you know.
On July 2, President George W. Bush sent a clemency order (below) to the Justice Department commuting the 30-month prison term of I. Lewis "Scooter" Libby ordered June 4 by Judge Reggie Walton. A $250,000 fine still stands for now, but the president may yet grant the former White House official a full pardon.
A Decision Made Largely Alone
With the sentencing of I. Lewis "Scooter" Libby, Fitzgerald has apparently finished his work, which was, not to put too fine a point on it, to make a mountain out of a molehill.
At the urging of the liberal press (especially the New York Times), he was appointed to look into a run-of-the-mill leak and wound up prosecuting not the leaker -- Richard Armitage of the State Department -- but Libby, convicted in the end of lying.
This is not an entirely trivial matter since government officials should not lie to grand juries, but neither should they be called to account for practicing the dark art of politics. As with sex or real estate, it is often best to keep the lights off.
The upshot was a train wreck -- mile after mile of shame, infamy, embarrassment and occasional farce, all of it described in the forthcoming "Off the Record," a vigorously written account of what went wrong, by Norman Pearlstine, Time Inc.'s former editor in chief. The special counsel used the immense power of the government to jail Judith Miller and to compel other journalists, including Time's Matt Cooper, to suspend their various and sacred vows of silence just so they could, understandably, avoid jail.
The press held itself up to mockery, wantonly promising confidentiality, anonymity -- what's the diff, anyway? -- and virtual life after death to anyone with a piece of gossip to peddle. Much heroic braying turned into cries for mercy as the government bore down. As any prosecutor knows -- and Martha Stewart can attest -- white-collar types tend to have a morbid fear of jail. Still, I wouldn’t have answered the questions either, even if asked nice.
As Fitzgerald worked his wonders, threatening jail and going after government gossips with splendid pluck, many opponents of the Iraq war cheered. They thought -- if "thought" can be used in this context -- that if the thread was pulled on who had leaked the identity of Valerie Plame to Robert D. Novak, the effort to snooker an entire nation into war would unravel and this would show . . . who knows something? Well... we know who and so far it hasn’t done us any good. And as for looking bad; let’s face it we’re just hungry for justice, and oh yes, a pound of flesh, preferably raw and dripping blood. Now there’s honesty.
For some odd reason, the same people who were so appalled about government snooping, the USA Patriot Act and other such threats to civil liberties cheered as the special prosecutor weed-whacked the press, jailed a reporter and now will send a previously obscure government official to prison for 30 months. It’s the scent of blood thing…the equivalent of being in political heat in this town.
This is precisely the sort of investigation that Jackson was warning about. It would not have been conducted if, say, the Iraq war had ended with 300 deaths and the mission had really been accomplished. An unpopular war produced the popular cry for scalps and, in Libby's case, the additional demand that he express contrition -- a vestigial Stalinist-era yearning for abasement. No one has yet explained, though, how Libby can express contrition and still appeal his conviction. No matter. Antiwar sanctimony excuses the inexplicable, the President pardons or commutes all, and the game goes on.
Accountability is one thing. By all means, let Congress investigate and conduct oversight hearings with relish and abandon. But a prosecution is a different matter. It entails the government at its most coercive -- a power so immense and sometimes so secretive that it poses much more of a threat to civil liberties, including freedom of the press, than anything in the interstices of the scary Patriot Act. The mere arrival of a form letter from the IRS will give any sane person a touch of angina.
I don't expect George Bush to appreciate this. He is the privileged son of a privileged son, and he fears nothing except, probably, doubt.
But the rest of us ought to consider what Fitzgerald has wrought and whether we are better off for his efforts. I have come to hate the war and I cannot approve of lying under oath -- not by Scooter, not by Bill Clinton, not by anybody.
This is a mess. Should Libby be pardoned? Should his sentence be commuted?
Yesterday President Bush commuted the 30-month prison sentence of Scooter Libby, Dick Cheney's former chief of staff who was convicted of perjury, making false statements, and obstruction of justice. At a press conference today, Bush said he won't rule out pardoning Libby at some point as well.
“Libby was convicted on March 6 of obstruction of justice, perjury, and making false statements to the FBI. Special prosecutor Patrick Fitzgerald intends to continue to fight efforts by Libby's lawyers to appeal the conviction to the D.C. Circuit Court.”
All the papers lead with President Bush commuting Scooter Libby's 30-month prison sentence. Vice President Cheney's former chief of staff won't have to serve a day in prison but his conviction for perjury and obstruction of justice in the CIA leak case still stands, which means he has to pay the $250,000 fine and will be on probation for two years. The president made his announcement after a group of judges denied Libby's request to stay out of prison while he appealed. In a written statement, Bush said he respects "the jury's verdict" but characterized the prison sentence as "excessive."
USA Today notes up high that Libby never filed a formal request and Bush didn't discuss the commutation with the Justice Department. In fact, many Justice officials were already on their way out of the office when they got the news on their Blackberries.
"They were floored," says the New York Times. By all accounts, Bush appears to have come to the decision mostly on his own and consulted few of his close advisers, says the Washington Post in a separate Page One piece. In pursuing the strategy the president may have been trying to avoid the accusation that he had succumbed to political pressure.
Both the NYT and WP point out that it's unclear what kind of role Cheney played in the process. The Wall Street Journal says the decision could affect Republican presidential candidates who may find themselves in the position of having to "defend the commutation for the remainder of the campaign." The Los Angeles Times notes that while the decision can't be overturned, "It can be criticized ... and Democrats were quick to do so."
Everyone quotes Senate Majority Leader Harry Reid saying that Libby's conviction "was the one faint glimmer of accountability for White House efforts to manipulate intelligence." And proving that lawmakers can drop pop culture references like the best of them, Sen. Richard Durbin of Illinois noted that "even Paris Hilton had to go to jail." Several Democratic presidential candidates joined in and also criticized the decision. (Sound bite heaven)
For their part, conservatives were mostly pleased, although some expressed disappointment that Bush didn't issue a full pardon. But, as several note, Bush could still do that at a later date. And you can put down your bets on a sure thing right here.
Special Counsel Patrick Fitzgerald issued a statement disputing Bush's characterization of the sentence as excessive saying that "an experienced federal judge … imposed a sentence consistent with the applicable laws." The Post quotes a law professor who calls the commutation "hypocritical" since Bush's Justice Department often argues against attempts by judges and lawyers to give lower sentences than those outlined by federal guidelines. God, don’t just love all the righteous indignation…talk, talk, talk, squawk, squawk, squawk!
The NYT quotes from Justice Department standards that say "requests for commutation generally are not accepted unless and until a person has begun serving that sentence." But, of course, the president has wide latitude in these matters. BuShit!!!
Everyone points out, as was often talked about in the will-he-or-won't-he days, Bush seems to have come to the conclusion that he didn't have much to lose by commuting Libby's sentence.
Those who criticize the decision are not fans of the president, so he may have decided that he needed to appeal to the base, especially after their widespread anger over the immigration bill.
Several of the editorial pages weigh in, and they aren't too happy with the decision. The WP agrees with the president that Libby's sentence was excessive, "but reducing the sentence to no prison time at all … is not defensible."
The NYT is more critical and says the commutation "only underscored the way this president is tough on crime when it's committed by common folk." The WSJ calls Bush's statement "another profile in non-courage" and says "Libby deserved better from the president whose policies he tried to defend when others were running for cover." And some folks wonder why the rest of us are pissed off to the point of revolution?
The president cannot pardon someone for a state offense. Article II, Section 2 of the Constitution gives the president the "Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." (For a discussion of what "except in cases of impeachment means" and whether the president can pardon himself, read this "Explainer.") That means the president can pardon only for federal crimes.
Now that would be good…just picture Bush Impeached; I do it regularly…he’s ready to leave The White House and he calls out to Laura: “I’ll be right with you honey, just have to put my signature on my pardon and leave it on the desk”. Even fantasies around here are insane anymore.
What's stunning about President Bush's commutation of Scooter Libby's sentence, if you're a criminal defense lawyer, isn't that it was politically motivated. Or that it tramples on principles of equal justice. Or even that it is the latest in a long string of Bush administration assaults on the rule of law.
Rather, what's astonishing is that the factors Bush relied on in commuting Libby's sentence are the same ones that the administration has aggressively sought to preclude judges from considering when imposing sentences on everyone else.
The specific bases Bush gave for the commutation are that the 30-month prison sentence was too harsh for Libby's crime, that he was a first-time offender who had a long history of public service, that his conviction had already damaged his career and reputation and caused his wife and young children to suffer, and that sentencing Judge Reggie Walton rejected the advice of the probation office, which recommended that he consider "factors that could have led to a sentence of home confinement or probation." Defense attorneys would generally agree that these are all good reasons for reducing Libby's sentence—particularly in light of the nature of his offense. They would also agree that 30 months was too long in the first place to serve for the nonviolent crime of making false statements.
The Bush administration, however, has consistently maintained that at sentencing, judges should be precluded from thinking about precisely the sort of individual circumstances the president raised in lending a hand to Libby. Last month, Attorney General Alberto Gonzales proposed legislation that would prevent judges from relying on anything outside the federal sentencing guidelines as the basis for a sentence more lenient than the range that the guidelines provide for. Only the rarest of exceptions to this rule would be permitted.
That proposed legislation would effectively reverse the 2005 Supreme Court decision in United States v. Booker, which authorized sentencing judges to consider factors like a defendant's life story and the nature and circumstances of his or her offense. Gonzales' bill would also make the federal guidelines, which the Supreme Court found unconstitutional, essentially mandatory again—again leaving judges less leeway for showing mercy.
Consider, in that light and in comparison to Libby, the case of United States v. Rita, which the Supreme Court decided two weeks ago. As Douglas Berman describes at Sentencing Law and Policy, Victor Rita also got "caught up in a criminal investigation and ultimately was indicted on five felony counts based on allegations that"—like Libby—"he lied while giving grand jury testimony." Rita was convicted.
At sentencing, he argued that he should receive a sentence below the range in the federal guidelines because he was elderly and sick, had served for 24 years as a Marine, including tours in Vietnam and the first Gulf War, and was vulnerable to abuse in prison because he'd worked in criminal justice on behalf of the government.
After receiving a within-the-guidelines sentence of 33 months, Rita appealed on the ground that the sentence was unreasonable given the nature of his offense and his personal circumstances. The Bush administration opposed Rita's appeal. The government argued that 33 months was reasonable simply because it complied with the federal guidelines.
And the Supreme Court agreed, affirming Rita's sentence. Berman lists other cases in which Bush prosecutors demanded and got harsh sentences for minor crimes committed by sometimes-sympathetic defendants.
The point is that this administration has steadfastly asserted its belief in uniform sentencing. Oh no; I feel the sickening urge to go on an “anti situational ethics, simple principled world of Justice”, but I won’t. I’ve said it all and it would just be a matter of saying it yet another way. And pleading for consistency from this administration is like whistling Dixie up a dead horse’s…well you know, an ugly proposition and an utter waste of time and energy.
Nationwide, the Department of Justice requires prosecutors to advocate for sentences that adhere to the guidelines because, the administration argues, this is the best way to narrow sentencing disparities among defendants who commit similar crimes.
Pardons and sentence commutations are by definition tickets that are good for only one ride, special treatment for special defendants.
And yet, one can't help asking, what of all those fears about disparity?
In the weeks and months to come, defense attorneys across the country won't be able to resist tapping away at their keyboards, arguing that their clients' individual circumstances call for sentencing breaks, just like Libby's did.
It probably won't work. But the administration's inconsistency is so glaring—and so perfectly illustrates the flaw of harsh and mandatory sentencing regimes—that to point it out to judges will be irresistible.
President Bush's commutation of I. Lewis "Scooter" Libby's 30-month prison sentence will likely prompt many people with politics similar to my own to cry bloody murder.
It will be called a cover-up. It will be called a payoff for Libby's failure to implicate Vice President Dick Cheney, and perhaps even Bush himself, more directly in the Plamegate scandal.
It will be compared to President Ford's pardon of Richard Nixon, and to Bush père's pardon of former Defense Secretary Caspar Weinberger a mere 12 days before Weinberger was to go on trial for perjury in connection with the Iran-contra scandal.
Both of these actions were wrong. But the comparison is a weak one.
I don't take lightly the fact that Libby lied to federal prosecutors about his role in unmasking Valerie Plame as a covert CIA employee. The underlying offense probably wasn't illegal—because Libby probably didn't understand that Plame's identity was a government secret—but it was nonetheless disgraceful.
Libby understood that, and that's why he committed perjury. His prosecution was appropriate because Bush administration officials need to know that they are not above the law. Libby's trial and conviction, I hope, got that message across to at least some of them.
But Judge Reggie Walton went overboard in sentencing Libby to 30 months. This was about twice as long as the prison term recommended by the court's probation office, and if Libby hadn't been a high-ranking government official, there's a decent chance he would have gotten off with probation, a stiff fine, and likely disbarment.
Walton gave Libby 30 months and a $250,000 fine, then further twisted the knife by denying Libby's routine request to delay the sentence while his lawyers appealed it. (Libby was duly assigned the federal prison register number 28301-016, but Libby's lawyers managed to move quickly enough to keep Libby out of the slammer until his appeal was denied on July 2, the same day Bush commuted his sentence.)
The voluminous pleas for leniency from Libby's A-list friends annoyed Walton, who erred on the side of severity not in spite of Libby's high position in government but because of it.
Walton wanted to make an example of him. This really is a reflection of the growing rage harbored towards this administration by the American people, and I for one am not displeased with Walton as he forced the President’s hand at a most fortuitous moment in the struggle for Impeachment.
Bur, what's the matter with that? Two words: Bill Clinton. No fair-minded person can deny that the previous president committed perjury about Monica Lewinsky while serving in the Oval Office. The country knew it, and it let him get away with it.
Does that mean no government official should ever again be prosecuted for perjury? Of course not. But it does mean Walton should have wondered whether he was imposing a double standard in treating Libby more harshly because Libby worked in the White House.
Is it really fair to treat White House aides more harshly than ordinary citizens when presidents get off scot-free?
It would have been wrong for Bush to pardon Libby, as many Republicans urged him to do. He’ll get around to that at a later time, as sort a cleanup action.
Libby committed a crime, and it wouldn't have been right for Bush to do anything to minimize the attendant disgrace or to lighten Libby's $250,000 burden.
"The reputation he gained through his years of public service and professional work in the legal community is forever damaged," Bush said. And so it should be. But that is never true in this town of such figures; it’s just a bump in the road.
It’s sort of like he was a “bad boy” got caught scolded, not even sent to his room and soon he will be forgiven all, until the day he writes his book.
Bush did not intervene to spare Libby further disgrace, as Ford did with the Nixon pardon, and he didn't pre-empt a prosecution that might reveal embarrassing facts about himself, as Bush's father did.
He waited until it was all over, and he acted in many eyes, “humanely”. Yes, it was inconsistent with his past indifference in such matters, particularly when he was governor of Texas.
Article II, Section 2 of the Constitution gives the president the power to pardon. Virtually every presidential pardon comes in response to a pardon petition, filed with a special Department of Justice office. If the request has merit, the office interviews the prosecuting attorney, sentencing judge, and other law enforcement officials involved with each case.
FBI investigators also compile a dossier on the applicant. The DOJ then completes a report on the request and offers a recommendation to the president on whether or not to grant a pardon.
The final decision belongs to the president, who could theoretically pardon an individual who had not filed a petition.
Who deserves a pardon? According to Department of Justice policy, presidential pardons are not meant to correct some judicial wrong, such as a false conviction or an unfair sentence (that's what the judicial appeals process is for).
Rather, pardons go to those who have atoned for their crimes by subsequent good behavior.
Presidents occasionally shorten the sentence of model prisoners who have demonstrated extraordinary remorse. But most presidential pardons go to people who have already completed their sentences and who can demonstrate that they've become honest citizens.
In these cases, the pardon allows the recipient to hold certain jobs (law-enforcement and many professions) and exercise certain privileges (voting and carrying a gun) denied to un-pardoned criminals.
Occasionally, a president will pardon someone who hasn't even been convicted.
Anticipatory pardons of this sort are generally given in the belief that they serve some national interest, such as when President Ford pardoned Richard Nixon or when President Carter pardoned the Vietnam draft-evaders.
President Bush also pardoned Caspar Weinberger after he'd been indicted, but before he'd been tried, which effectively short-circuited a trial.
It makes sense that this power rests with the executive rather than the judicial branch, since it's an explicitly political decision.
Still, pardons of any sort are very rare. Clinton has issued only 107 in six years, despite more than 4,000 requests.
This is a whole arena one could fight over forever and currently “We The People” are divided once again on an issue that we should be united on into those who wanted the jail time as some small morsel of justice and those who say: “what the hell; we got enough mileage out of this and is was all predictable anyway”.
THE DECISION RENDERED HERE IS: UNDER BUSH THE AMERICAN JUSTICE SYSTEM HAS BEEN SHOT TO HELL, AND THE REMEDY DOES NOT RESIDE IN THE TRAIL OF BUSH PUPPETS READY TO FALL ON THEIR SWORDS; IT RESIDES IN THE IMPEACHMENT AND CONVICTIONS OF GEORGE W. BUAH AND RICHARD B. CHENEY!
Other Thoughts and Issues:
Arm's-Length Leniency
Bush Says He's Not Ruling Out Pardon for Libby
A Declaration The President Ignores
Bush Commutes Libby's Prison Sentence
Too Much Mercy
Hush-Hush: Rove's Security Clearance Renewal
I Treat the Patients Michael Moore Forgot
Iraq, al-Qaeda and Tenet's Equivocation
CIA Releases Files On Past Misdeeds
Keeping an Eye on Communism
Fighting War Protesters
The Keeper of Secrets Earned His Reputation
Trying to Kill Fidel Castro
WORLD IN BRIEF
The Unseen Path to Cruelty
More search results for Central Intelligence Agency on washingtonpost.com »
Articles on the Web
Legacy of Ashes: Secrecy and Screwups (Mother Jones) 7/3/2007 8:37:26 PM
Brushing Off the Leak of a Covert CIA Agent (Democratic National Party) 7/3/2007 1:05:23 PM
Editorial: Remember the real story (Las Vegas Sun) 7/3/2007 11:22:45 AM
Cuba hits newly released CIA documents (San Jose Mercury News) 7/3/2007 6:26:36 AM
Are you enjoying the ride backwards? (Cape Cod Times) 7/3/2007 3:41:49 AM
Reality of the Intelligence Battle (New York Sun) 7/3/2007 2:48:44 AM
Study: FOIA Requests Plagued by Delays (San Francisco Chronicle) 7/2/2007 10:01:31 PM
Chinese tango with Pak was aimed at India (Hindustan Times) 7/2/2007 12:12:26 PM
Old intelligence documents amount to a how-not-to manual (Modesto Bee) 7/2/2007 9:30:53 AM
THE REAL SINS OF THE CIA (New York Post) 7/2/2007 5:00:12 AM
Related Blogs
CBS, NBC uncritically reported Bush claim that Libby's sentence was "excessive" (Media Matters for America) 7/3/2007 7:07:30 PM
Media still repeating false claim that Armitage role in Plame leak exonerates Libby (Media Matters for America) 7/3/2007 4:46:42 PM
Ahhh, yesterday when... (Talking Points Memo) 7/3/2007 4:30:00 PM
Moral Equivalence in 'A Mighty Heart' (The Corner) 7/3/2007 2:00:39 PM
Wash. Times' Pruden again claimed Plame "was not really a covert agent" (Media Matters for America) 7/3/2007 1:15:47 PM
Related Video
Bush Won't Rule Out Libby Pardon (RedOrbit Video) 7/3/2007 6:49:05 PM
Bush Commutes Libby Prison Sentence (CBS4 Denver Video) 7/3/2007 8:16:46 AM
Video: Jeffery Donovan brings the heat (MSNBC Video Today Show) 6/28/2007 11:22:54 AM
Related Audio
President Bush Commutes Libby's Sentence (NPR Politics & Society) 7/3/2007 10:37:34 AM
Wilson Lambastes White House on Libby Case (NPR Politics & Society) 7/3/2007 10:37:29 AM
The Release of the CIA's "Family Jewels" (WAMU: The Diane Rehm Show) 6/28/2007 3:46:15 PM
http://courtofimpeachmentandwarcrimes.blogspot.com/2007/07/impeachment-impeach-bush-and-cheney_4159.html
Other Thoughts and Issues:
Arm's-Length Leniency
Bush Says He's Not Ruling Out Pardon for Libby
A Declaration The President Ignores
Bush Commutes Libby's Prison Sentence
Too Much Mercy
Hush-Hush: Rove's Security Clearance Renewal
I Treat the Patients Michael Moore Forgot
Iraq, al-Qaeda and Tenet's Equivocation
CIA Releases Files On Past Misdeeds
Keeping an Eye on Communism
Fighting War Protesters
The Keeper of Secrets Earned His Reputation
Trying to Kill Fidel Castro
WORLD IN BRIEF
The Unseen Path to Cruelty
More search results for Central Intelligence Agency on washingtonpost.com »
Articles on the Web
Legacy of Ashes: Secrecy and Screwups (Mother Jones) 7/3/2007 8:37:26 PM
Brushing Off the Leak of a Covert CIA Agent (Democratic National Party) 7/3/2007 1:05:23 PM
Editorial: Remember the real story (Las Vegas Sun) 7/3/2007 11:22:45 AM
Cuba hits newly released CIA documents (San Jose Mercury News) 7/3/2007 6:26:36 AM
Are you enjoying the ride backwards? (Cape Cod Times) 7/3/2007 3:41:49 AM
Reality of the Intelligence Battle (New York Sun) 7/3/2007 2:48:44 AM
Study: FOIA Requests Plagued by Delays (San Francisco Chronicle) 7/2/2007 10:01:31 PM
Chinese tango with Pak was aimed at India (Hindustan Times) 7/2/2007 12:12:26 PM
Old intelligence documents amount to a how-not-to manual (Modesto Bee) 7/2/2007 9:30:53 AM
THE REAL SINS OF THE CIA (New York Post) 7/2/2007 5:00:12 AM
Related Blogs
CBS, NBC uncritically reported Bush claim that Libby's sentence was "excessive" (Media Matters for America) 7/3/2007 7:07:30 PM
Media still repeating false claim that Armitage role in Plame leak exonerates Libby (Media Matters for America) 7/3/2007 4:46:42 PM
Ahhh, yesterday when... (Talking Points Memo) 7/3/2007 4:30:00 PM
Moral Equivalence in 'A Mighty Heart' (The Corner) 7/3/2007 2:00:39 PM
Wash. Times' Pruden again claimed Plame "was not really a covert agent" (Media Matters for America) 7/3/2007 1:15:47 PM
Related Video
Bush Won't Rule Out Libby Pardon (RedOrbit Video) 7/3/2007 6:49:05 PM
Bush Commutes Libby Prison Sentence (CBS4 Denver Video) 7/3/2007 8:16:46 AM
Video: Jeffery Donovan brings the heat (MSNBC Video Today Show) 6/28/2007 11:22:54 AM
Related Audio
President Bush Commutes Libby's Sentence (NPR Politics & Society) 7/3/2007 10:37:34 AM
Wilson Lambastes White House on Libby Case (NPR Politics & Society) 7/3/2007 10:37:29 AM
The Release of the CIA's "Family Jewels" (WAMU: The Diane Rehm Show) 6/28/2007 3:46:15 PM
http://courtofimpeachmentandwarcrimes.blogspot.com/2007/07/impeachment-impeach-bush-and-cheney_4159.html
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