Thursday, February 23, 2006

Technicalities and unanswered questions

Lewis Libby's lawyers are seeking to have the charges against him dismissed. On what grounds, you ask? Because, they say, Special Counsel Patrick Fitzgerald lacks authority.

Lawyers for I. Lewis "Scooter" Libby said his indictment violated the Constitution because Special Counsel Patrick Fitzgerald was not appointed by the president with the consent of the Senate.

The defense attorneys also said Fitzgerald's appointment violated federal law because his investigation was not supervised by the attorney general. They said only Congress can approve such an arrangement.

The lawyers said illegal assignment of "unsupervised and undirected power" to Fitzgerald requires that he be relieved of his duties in the investigation and that all actions he has taken be voided.

Okay, lawyers have a duty to defend their client by whatever means they can. But seeking a dismissal on a technicality such as this one isn't really the best way to go. It's strikingly similar to the defense Saddam Hussein is using, denying the legitimacy of the court rather than disputing the charges against him.

Here's my free legal advice: Not the best example to share company with, guys.

Especially because there are plenty of substantive questions on the topic.

Off the top of my head:

Was Valerie Plame undercover? As far as I can tell, revealing her name was a crime only if a) she was undercover and b) Libby knew it. You would think that answering those two questions would settle the whole affair, and pretty quickly, too. But here we are nearly three years into the case and neither question has been answered.

Why did Libby lie? He's innocent until proven guilty, of course. But let's assume that Fitzgerald can prove his case in that regard. What was Libby's motivation?

What about Cheney? Libby says Cheney authorized him to talk to reporters about Plame, and also to discuss parts of a classified National Intelligence Estimate with reporters.

This last is the most interesting part, but not for the obvious reasons. Parts of NIEs are regularly declassified, and if that's the case then no crime was committed. Yes, it's using classified info for political purposes. And yes, if the relevant parts of the NIE *weren't* declassified, then it may have been a crime. But let's put that aside for a moment.

Because the main reason it wouldn't be a crime is that Cheney says he has the power to declassify information.

Think about that. Because Cheney is authorized to declassify information, he can declassify and legally leak (er, release) anything he wants. But does that make it okay? How do you judge whether he's using that power responsibly, especially when his motivation for declassifying the info is to discredit or counter political opponents?

If you think it's okay in this case.... then where do you draw the line? I'm interested in seeing what people consider a general case when it comes to declassifying data for political purposes.

For a conservative take on it (including a very helpful explanation of exactly what Cheney was referring to), click here.

Finally, a minor side point: Having declassified it, they secretly leaked it to a reporter instead of simply going public with it. What's up with that?

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