Sunday, June 17, 2007

Has Libby's sentence created a new group of Right-wing civil libertarians?

I know it grows old, my harping on the right wing's constant attempt to be tougher and tougher on crime, to put as many people in jail as possible, to run campaigns on anger and fear, resulting in a 25 year growth of the prison industrial complex that is unprecedented in our history. And I know that Dems now do it as well (they learned their lessons from Dukakis, after all, that being against the death penalty, for instance, wins them no elections). The question I have is whether the Libby conviction and sentence will be a watershed, or if the words we are hearing spoken from leading conservatives in this country are principled objections, or two-faced political blather designed to back up the notion that conservatives can never be guilty of a crime (if they were doing those crimes to further conservative causes).

So I have to ask, will the Libby situation change anything? Will the constant calls to pardon him right now mean anything? Will the comments that he was the victim of an overzealous prosecutor have any spillover to the overzealous prosecutions of people like John Walker Lindh (the "American Taliban"), Martha Stewart, or the numerous other attempts to criminalize what is otherwise non-criminal behavior.

Or, will this create a change in the really absurd law that it is against the law to lie to a federal agent. Think about it, they come to you, ask you questions, and the law requires (not under oath, mind you), that you have to tell them the truth? So if they come up to you and ask if you have pot on you, you have to answer yes or go to jail? Give me a break. But that is another law that pushes jail for things that really should not have people locked up.

So, as the jails fill with people like Scooter Libby (and I fully admit that if this wasn't a general in the war on America launched by the right wing, I would normally oppose his incarceration for an offense like this - but hey, you reap what you sow), will this begin to change the sentiments of the nation by changing the sentiments of the right wing?

Will the numerous briefs submitted by right wingers like Robert Bork (who has probably never seen a prison sentence - of non-conservatives - that he didn't like) challenging the conviction and sentence cause a ripple in the rest of the criminal justice system to finally begin toning things down?

Don't bet on it. This is not principle we're dealing with here, this is bare knuckled politics. There is no disagreement with the basic conservative doctrine of running on fear and vilification, and combating obstacle with as much brute force as possible. There is only the problem that it hit a high profile conservative this time. Rest assured, Bork, Gingrich, and the other cast of characters now calling this sentence unconscionable will be standing front and center vilifying "liberal, activist" judges the next time a sentence is reduced against someone who's not a card carrying member of the conservative movement. And they will do it with a straight face in the manner that only a true hypocrite can.

Bet on that.


Windypundit said...

They say a conservative is a liberal who's been mugged. Well, I say a liberal is a conservative who's been indicted.

So if they come up to you and ask if you have pot on you, you have to answer yes or go to jail?

Dude, you know the answer to this one. You have the right to remain silent. Tell them to pound sand.

At this point, I'd be afraid to talk to a federal agent about anything, for fear that an honest mistake could land me in jail. I probably don't have the willpower to resist even mild questioning---I'm not exactly a hard case---but I know I should try.

AJ said...

I agree that this will not change overall conservative views in the slightest. Remember, Libby is guilty of the same crime that got Clinton impeached: lying under oath to the independent counsel when the independent counsel was investigating activities that were likely not crimes. You don't see any of those zealots who moved for Clinton's impeachment retracting their earlier comments, do you?

Furthermore, the last time someone this high up in the staff got busted, it was Iran/Contra. The conservatives came out of the woodwork then to defend a guy who sold weapons to our avowed enemies (a clear crime), while turning around and increasing the statutory maximum sentences for crimes across the board in the immediately following years. In light of that history, I certainly don't expect this paltry trial to make anyone turn over a new leaf.

PD Dude said...

Clearly, there was a tongue in cheek nature to my comment. I really don't expect many conservative zealots to become principled all of a sudden.

Cs Legal said...

"Remember, Libby is guilty of the same crime that got Clinton impeached: lying under oath to the independent counsel when the independent counsel was investigating activities that were likely not crimes. You don't see any of those zealots who moved for Clinton's impeachment retracting their earlier comments, do you?"

True enough...but then how many liberals do you see arguing for support of Libby??? i.e. that Fitzgerald's investigation was a waste of time; that any lie by Libby was not material, and that there should not have been an investigation to begin with? That was the argument by the same in support of Clinton wasn't it? So its a wash then is it not? Please dont imply that liberals are any less hypocritical on this point than conservatives.

PD Dude said...

CS - If you think that the Libby and Clinton situations are any more analogous than Birds to Lions by virtue of being animals, then there's not really much to talk about. I'm sure I can go and address this in another post sometime, the major differences between lying about an extremely tangetial issue to a civil lawsuit based on a vague and ambiguous question vs. repeatedly lying in order to cover up a major operation that stemmed from the highest levels of government (his boss - the VP) to out a CIA agent in order to discredit critics of a war.

If you can't see the difference, then you need to check your own ideology at the door.

CS Legal said...

PD Dude,

They are very perhaps you will be well suited to present the differences in another post as you state.

But let me fill you in for now:

1. No one was charged or convicted for covering up anything (Ur a PD for christ should know better);

2. No one was charged with revealing the identity of a covert officer;

3. Fitzgerald knew the leaker was Richard Armitage (not Libby or Cheney or Bush), who was never charged with anything.

4. This investigation had nothing to do with the Iraq war and no judgment was ever passed on that by
the DA (see Fitzgerald press conference when Libby indicted referencing just that).

5. Libby was dinged for supposedly lying about when and if he had conversations with certain people...thats its. The answer to those questions had absolutely no bearing on the investigation and leads to the same result...nothing! He lied... he got dinged...plain and simple. Nothing relevant or material about his lie. If he didnt lie, the investigation is over just the same. Please enlighten me on what you think was such a cover up, what was ever proven, or whether anyone was ever charged with outing anyone?

6. This case is identical to Martha Stewart and Clinton's in that the lye was immaterial to anything.

7. Discrediting the opposition party or people opposed to your policies is not against the law my friend...thats just politics. Again, no one was charged for discrediting Wilson or outing Plame.

As for ideology my friend, you wrote the following:

"So, as the jails fill with people like Scooter Libby (and I fully admit that if this wasn't a general in the war on America launched by the right wing, I would normally oppose his incarceration for an offense like this - but hey, you reap what you sow"

Again, proving what I have intimated for the last few posts: You don't stand for anything.... Injustice is not really injustice to you so long as you disagree with the accused politics. Plain and simple, you hate the Bush administration, Cheney and Libby by default. To that end, you are perfectly content with foregoing any principals you may hold to see these people punished. (Despite all of the sane and inane arguments we make on behalf of our client's as zealous advocates, I like how you take a shitty US attorney case and make the argument for them, instead of making arguments on behalf of the Defendant simply when it suits your politics).

As for me...simple. I am libertarian as you know... I disagree with the Bush administration policies on much of the same principals as you and then some. And of course I disagree with your politics. But I am able to admit when conservatives are hypocrites as well as liberals. But you...being a clear liberal...cant apparently do the same.

So please just don't hold yourself out to be some torchbearer for truth, justice and equality when you yourself check these principals at the door depending on the circumstance and politics involved. Dont just pay lipservice to these ideals for some...stand up for them for everyone. Otherwise, just call this blog "Political Dude" instead and move on.

Anonymous said...

"They say a conservative is a liberal who's been mugged. Well, I say a liberal is a conservative who's been indicted."

That's a great line.

Don't forget the boarder patrol agents who shouldn't face mandatory 12 year terms.

Free Foley! Wait, he's already free.

PD Dude said...

If being satisfied that a whole movement that has helped to screw this country up is getting some degree of commupence, is reaping only a little of what they sow, makes me unprincipled, then so be it.

I never have claimed to be pure. I thought OJ was guilty, but based on the prosecution's case a verdict of NG was not inappropriate. Nonetheless, I wanted him to be convicted so that it wouldn't screw over tens of thousands of other defendants who came after him and saw the laws changed against them in a manner they could never defend against like he could.

I figured Kobe was not guilty but I wouldn't have minded him being convicted - despite overwhelming public opinion otherwise - because I figured it would help the cause of claims of innocence everywhere and would swing things more in the favor of fairness to defendants in the ensuing outrage.

And here, I love the fact that after running campaigns of "toughness on crime" for all these decades, conservatives are getting a taste of their own medicine, things they rammed down the throats society for the last 25 years.

I think that this is what makes me "Public Defender Dude," rather than "Principled Law Professor Dude," or Philosophically Correct Dude." As a public defender, I represent the absolute underdogs everytime. The people that society has shat upon forever. People who don't have politicians on their side, who don't have public opinion on their side. People who are generally vilified whenever their cases come up for discussion. And Public Defender Dude defends them, and gets a small measure of satisfaction when the "man," in this case, Libby, gets it in the eye. And if that makes me unprincipled - fine. But it clearly makes me a Public Defender.

And anyone who doesn't understand that, hasn't had the absolute joy to have hung out with Public Defenders for a good stretch before.

It definitely does not leave me "Principled Libertarian Dude," no matter how much I may agree with you or other principled folk of whatever political stripe - and I can assure you that my philosophy would be harder to pidgeon-hole than you could ever imagine.

AJ said...

I've just gotten back to reading the answers, sorry for not replying sooner. Yes, cs legal, you're right that liberals have not been making the case that Libby's lies were irrelevant. I think they should at least note that Fitzgerald was investigating a leak that, standing alone, did not constitute a crime. Although I think it is important to differentiate between the two investigations.

The Starr investigation was about Paula Jones' civil suit and Whitewater. Neither of which jeopardized anyone's life (Vince Foster conspiracy-theories notwithstanding). Moreover, the investigation into Clinton's dalliances with Lewinsky was only tangentally relevant to the investigation.

Fitzgerald's investigation was about a topic that is a bit more serious. Investigating the leak of covert agents is potentially much more harmful than the president being sued for sexual harassment. Also, at the point the investigation started, there was some question as to whether it was a crime to release the information. Finally, the questions to Libby were directly related to the subject of the investigation.

While I agree that both sides should come out with the same arguments for Libby and Clinton, I do think that there are significant distinctions that can be made between the two situations. I should have made those clearer in my first post.

So, in direct answer to your question: yes liberals should also note that Libby is charged with perjury in an investigation over a non-crime. But no, I disagree with your contention that there should not have been an investigation in the first place. Thus, Libby's perjury occurred in a different context than Clinton's, and is partially distinguishable.

CS legal said...


I did not mean to imply there should not have been an investigation by Fitzgerald. I hope we are clear on that...there should be an investigationn whent there is a allegation that an agent has been outed. No one wants to repete the days of Phillip Agee. We are in agreement there. I wish, however, that the same people who find the outing of a covert agent to be so offensive (as they should), would at least be consistent and demand an investigation as to who leaked the "black prison" project in foriegn countries. It is the same type of sensative and illegal information to leak, regardless of whether one believes that those prisons should exist to begin with.

We actually agree rather than disagree. What I was getting at is that at the time Fitzgerald started raising his eyebrow at Libby, he already knew that Armitage leaked the name, and that there wasnt at the least a provable violation of the law. At that point, and upon the indictment, it became the Clinton type matter from a legal sense. Sure the politics and underlying issues are different, but legally they are the same since there turned out to be no underlying crime. Nor was Libby's lie germane to the underlying investigation. U.S. attorneys are pretty much the lie to them...they get pissed...they charge you, underlying crime or not.

I think you and I are pretty much on the same page. I was primarly addressing the hypocracy on both sides when emotions and politcal convictions are involved. Everyone seems to justify one situation but not the other based on where their affiliations lye.

PD Dude said...

It should be noted that while he knew Armitage had leaked the name, he wasn't sure that this was the only violation that had taken place. The only reason that this may not have been criminal is because Armitage did it inadvertantly.

However, while trying to find out about all the leaking, not just Armitage's, he also found out that others were discussing this, including Rove & Libby as told to the members of the press who were coerced into testifying. However, when he spoke with Libby and Rove about the CRIME of leaking an agent's name (and it is beyond dispute that she was a covert agent and that her uncovering damaged national security), he was prevented in finding out the full nature of whether there was a crime that took place in part due to Libby's lies.

He was not able to fully find out what Libby told, what his mindset was when he did so (the mindset being important because the statute calls for Knowingly), and whether he was under lawful orders to do so (again, because he covered up Cheney's role in the whole thing).

And, what galls me, is that the whole delay thing is really a cynical ploy to allow Bush to pardon Libby without any political consequences when his term ends, rather than doing it now when he still has so much time left on his term, and, most importantly, when it could be turned into an issue for the next presidential election, rather than doing it when he's a lame duck after the next election.

So, the arguments being made for Libby have nothing to do with principled civil libertarian positions, they have to do with delaying this long enough to allow a presidential pardon without having to pay the political price for doing so for another 4 years, or never (this, by doing it in December of 2008, after the next presidential election, so this is never debated as a public issue and disappears over time, like the Weinberger et al pardons of 1992).

CS Legal said...

PD Dude:

I appreciate your analysis but it's not completely sound.
There is no way that Armitage disclosed Plame's identity "inadvertently"...What does that mean?? Unless he had a sudden bout of Tourett's...he told Novak and others specifically who she was and what she was doing. Short of this disease or some other malady...I dont know what "inadvertently" is. Thus, in disclosing her name he himself would either be committing a crime, or he didn't believe she was covert, or that it already was public knowledge.

There seems to be quite a dispute in many legal circles and within the CIA whether Plame was covert. So i dont know about that fact that there is "no dispute" as you mention. However, I wouldn't argue against you on this point.

With most everything else I agree with you...the pardon, the politics, that is Washington. And its certainly not principled. I certainly didn't suggest that conservative support of Libby had anything to do with principled libertarianism. It's pure hypocrisy and I said that in my first comment about conservatives. I was stating my view that I hope is principled, and pointing out the liberal hypocrisy as well.

Now based on what you believe and write, agree that you would like to see an investigation into who leaked the "black" prisons in Poland and other countries? Or are you gonna claim that that was just legitimate whistle blowing? Lol.

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