Some opinions are clearly more important than others. In early July 2003 a New York Times Op-Ed by former ambassador Joe Wilson claimed that the White House had twisted intelligence to strengthen its case for war in Iraq. Wilson raised difficult questions about inaccuracies in the President’s State of the Union speech-the now infamous “sixteen words” about Iraq seeking yellowcake from Niger. The opinion appeared at a time when the failure to find WMD had made the administration particularly sensitive to criticism. Vice-President Cheney, who had played a leading role in framing the case for war, was incensed. A few days later, high-level leaks revealed that Wilson’s wife, Valerie Plame, was a CIA agent who had helped to arrange his visit to Niger, so the agency must have known the truth about the facts he was now disputing. The disclosure was meant to show Wilson as acting in bad faith, to replace his criticism with doubts about his character. But the plan completely misfired.
Democrats pounced on the leak as a violation of national security-active spies are protected by an obscure law known as the Intelligence Identities Protection Act-and they called for an investigation. After an internal inquiry, the CIA concluded that there were grounds for genuine concern and the agency took the matter up with the Justice Department. Attorney General John Ashcroft opened a formal investigation but soon realised the probe would involve senior White House officials with whom he was closely associated. He recused himself and appointed an independent Special Prosecutor from Chicago, a US Attorney who had made a name prosecuting mobsters in New York. It turned out to be an inspired choice, but not in a way that anyone in Washington could have expected.
Patrick Fitzgerald is a plainspoken man with a bloodhound’s instincts for sniffing out crimes, and a Jesuit’s sense of mission-New York Times columnist Maureen Dowd has described him aptly as a ‘priest of the law’. He cast a wide net, showed neither fear nor favour, and grilled politicians and journalists with unbecoming zeal-even sending the reporter Judith Miller to prison after she refused to name a confidential source. Fitzgerald eventually concluded that the leak had not produced a prosecutable crime, but since the Vice-President’s chief of Staff, I. Lewis “Scooter” Libby, had lied during the course of his testimony, the prosecutor decided to make a point about perjury.
Libby was indicted on five narrow and carefully laid charges of obstructing the course of justice. Fitzgerald insisted that the case had nothing to do with the Iraq war, but the trial quickly became a rallying point for many Americans who wanted the Bush administration to face a long overdue comeuppance. Throughout the trial, Fitzgerald maintained that his contention was simply that public servants should not lie in sworn testimony. If they did, and were discovered, they should be punished accordingly. Once he had uncovered Libby’s deceptions-these were explained away in the trial as “memory lapses”- Fitzgerald believed it “inconceivable that any responsible prosecutor would walk away from the facts … and say, ‘There’s nothing here, move on.” Last week, after a short but eventful trial, Libby was found guilty on four of the five counts of perjury. If his appeals fail to overturn the verdict, he is likely to be sentenced to a jail term of two years or more.
Whatever your political sympathies, it is impossible to deny that the verdict is much-needed proof that the American legal system, so widely discredited by the Supreme Court decision to stop the Florida recount in the 2000 election, still works. This proof is all the more important since it comes at a time when a large number of federal prosecutors are alleging that they have been unfairly dismissed for refusing to bow to political pressure in the run-up to last year’s midterm elections. As the New York Times columnist Paul Krugman pointed out recently : “Donald Shields and John Cragan, two professors of communication, have compiled a database of investigations and/or indictments of candidates and elected officials by U.S. attorneys since the Bush administration came to power. Of the 375 cases they identified, 10 involved independents, 67 involved Republicans, and 298 involved Democrats. The main source of this partisan tilt was a huge disparity in investigations of local politicians, in which Democrats were seven times as likely as Republicans to face Justice Department scrutiny.” In this context, the sight of an independent US attorney humbling one of the most powerful politicians in the land offers a much-needed glimpse of the way American justice is meant to work.
Some have argued that Libby’s evasions were motivated by the doctrine of the Noble Lie, an idea associated with the Neocons’ house philosopher Leo Strauss. Straussians allegedly believe that Plato approved of certain deceptions (like the exaggeration of an enemy’s power), if these helped the governing elite to serve the nation’s larger interests. This analysis suggests that the much-hyped vision of establishing democracy in the Middle East was built on intelligence that Cheney and others knew to be false all along. If that is true, then the Libby verdict is the first time that this administration has been made to answer for its cynical treatment of American public opinion, the first time in six long years that it has been forced to acknowledge, as Senator Moynihan once said, that: “Everyone is entitled to their own opinions, but they are not entitled to their own facts.”
But the news isn’t all good. In the course of investigating the Plame affair, Fitzgerald created serious problems for the US media too. A reporter’s right to protect a confidential source is now not as clear as it was a few years ago. Fitzgerald’s hounding of the journalists Matt Cooper (whose employers eventually bowed to the government pressure and forced the reporter to reveal his source) and Judith Miller has unsettled many journalists. Without protection, sensitive investigations that rely heavily on anonymous sources face an uncertain future.
Beyond that, there is problem of what to do with the whole culture of “spinning” that now informs every modern democracy. At what point do background briefings and off-the-record conversations stop serving the public interest and shade into the kind of smear that was being used against Joe Wilson? When should the inner workings of a government be protected from inquisitive journalists, and how should journalists be protected from scheming politicians? There are no easy answers to these questions.
Some parts of the American right have treated the trial as a witch-hunt. Within hours of the verdict prominent conservatives called for a presidential pardon. They should be careful what they wish for. At the very end of his scandal-ridden second term, President Clinton agreed to pardon a commodities trader who had made oil deals with revolutionary Iran and then fled the United States with millions of dollars in unpaid taxes.
Mark Rich had good lawyers (ironically enough one of them was none other than “Scooter” Libby) and he paid his back taxes, but the pardon was widely seen as the low point of Clinton’s presidency. George W. Bush is unlikely to expose himself to similar criticism. He already has his hands full, not least with the as yet unfulfilled promise to fire anyone involved in the Plame leaks.
For him the Libby verdict is a very inconvenient truth. For Vice-President Cheney and Karl Rove one can only hope that it is a sign of things to come.
