Libby and the underlying offense

“The underlying offense probably wasn't illegal—because Libby probably didn't understand that Plame's identity was a government secret . . . .” So says a writer in Slate, Timothy Noah, “Why Bush Was Right To Spare Libby,” Monday, July 2, 2007, who claims in the same piece to be a “liberal” who ought to be outraged by Bush commuting Libby's sentence.

This is bullcrap. Libby knew for almost two weeks that Wilson’s wife worked at the CIA before he disclosed that to Judith Miller – and that leak was two weeks before Joseph Wilson went public with his New York Times op-ed attacking the uranium claim in the President's State-of-the-Union" speech earlier that year. He knew for a month before he made the same disclosure to Miller a second time – after the op-ed had appeared. At least before the second deliberate leak, he knew she worked in the Counter-Proliferation Division of the CIA -- i.e., important, dangerous stuff).

First of all, with all the intrigue for containing the controversy going on surreptitiously within the Administration for over two months (after Nicholas Kristof wrote on May 6 in the Times about Wilson’s Niger trip as discrediting the uranium story without naming Wilson), it strains the imagination to believe that Libby did not, in fact, know that Plame’s status was covert. Beyond that, however, Libby was not some White House laundry worker or sidewalk sweeper. Libby was the friggin’ Chief-of-Staff of the friggin’ Vice President of the United States of America – of the man some would say was the real President and therefore the most powerful man in the world. You think maybe, since the CIA does a lot of secret stuff to protect the country and has many officers and agents under cover of some kind, Libby should have considered himself to be under a solemn duty to find out whether Mrs. Wilson was covert or not before he spilled that information to a reporter?

We know for a fact that Libby leaked the information identifying her. We know for a virtual fact that she was covert -- that is, based on both the CIA's confirmation of its belief as well as Fitzgerald's declaration after careful study of the law that it was clear from the beginning that she met the statutory definition of a "covert" official. We know for a fact that at minimum Libby knew that he did not know she was not a covert agent, and that if he didn't know, he should have known. No underlying crime? The real question is, with all the necessary elements of a criminal act present -- recklessness in many cases can form the basis for a finding of criminal intent, and would seem particularly appropriate with such a critical function -- why did Fitzgerald choose not to charge that crime as well?

I wish the Congress would pursue that question. The value of that statute (against leaking the identity of a covert intelligence officer) is the public's business, so I would question whether Fitzgerald would have the right to refuse to answer it.