As a libertarian, I am of course appalled by the moral outrages committed by Scooter Libby. He and his clique conspired to lie and manipulate the United States into a murderous war.
But what has he been convicted of? Obstruction of justice? Lying to authorities? And what did he lie to them about? Ultimately, he is in hot water for leaking the name of a CIA spy.
Are these acts, in themselves, crimes? It would seem to me that exposing a CIA agent isn’t even a crime in itself, since it’s just free speech. Why are government secrets legitimate, anyway?
Yes, his motives were evil, but should he be punished for these acts?
Now, I understand that many libertarians will think I’m being far too theoretical when I suggest that the president should pardon Scooter Libby. This man has blood on his hands, after all. Lots of blood. I can sympathize with this point of view.
Here’s a non-theoretical reason why I think they need to let him free, at least as it concerns the offenses of which he was actually convicted: So long as even Scooter Libby can be imprisoned for a non-crime, that leaves no hope for anyone else. Generally, the state exempts itself from its own laws, including proper laws against murder, theft and so forth — indeed, this is what makes a state a state. But for the state to punish one of its own for a fabricated offense does not bode well for the rest of us.
For the sake of justice, even the worst offenders should not be stripped of due process by the state or convicted of pretended offenses. Just as the US government shouldn’t suspend habeas corpus in regard to people who are most likely terrorists, for such a policy endangers all of us, it shouldn’t imprison people for non-crimes, even if they are criminals in other ways. Thus, Al Capone shouldn’t have been sent up river for tax evasion (or for bootlegging).
As for whether I sympathize with Scooter for having been convicted of these non-crimes, I am tempted to take the position Lew Rockwell took toward Bill Clinton, the president who complained his "private life" was being uprooted by the special prosecutor and yet who never shied from invading the private lives of ordinary Americans: "Let him grant to every American the broad rights to private life that he demands for himself," Lew wrote. "Until then, we are entitled to regard his speech as the plea of a tyrant caught in his own web."
Surely, the power of pardon should be used to free all prisoners who have been convicted only of non-crimes, not just those politically close to the Bush regime. This would include a long list of folks.
Anyone else jailed or imprisoned solely for any “obstruction of justice” charge should be freed. Refusing to cooperate with the government is not a crime. This applies to refusing to serve on a jury or resond to a subpeona, of course, and probably to most cases of “perjury” and “contempt of court.”
Anyone who is in prison or jail or otherwise being coerced by the criminal justice system for failure or refusal to pay taxes must be pardoned and exonerated. Taxation is theft, and resisting theft is not a crime.
Anyone jailed or imprisoned for keeping, bearing, buying or selling firearms in violation of the law must be immediately freed. Personal ownership of weapons is only a corollary of property rights and the right to self-defense, and it is not a crime in any sense. Indeed, using legal coercion against peaceful gun owners is itself a violent crime.
Anyone who is in prison, jail, or the criminal justice system for any drug offense — possessing, buying, selling or manufacturing — must be pardoned immediately and released. People have a right to put into their bodies whatever they want, period. Drug offenders make up the largest percentage of the wrongfully incarcerated population, so pardoning them alone would be a gigantic triumph for freedom for hundreds of thousands.
People do have a right to control their bodies, so anyone stuck in prison, jail, or the criminal justice system for prostitution or any other consensual sexual activity must be released and pardoned. This includes such obviously outrageous cases as the "aggravated child molestation" case of Genarlow Wilson, who is serving ten years in a Georgia prison for having consensual oral sex with his fifteen-year-old girlfriend when he was seventeen.
(Sexual freedom as well as freedom of expression would include pornography, which is, thankfully, not as legally penalized as it used to be — meaning that Scooter would also be off the hook for his smutty novel, which, though it describes criminal acts of forcing children to engage in bestiality, is not criminal in itself.)
Anyone in jail or prison for violating gambling laws must be freed. True property rights imply the right to risk your property in a game of chance.
This next one is quite important for those defending Libby as well as the war: Any member of the armed forces jailed or imprisoned for so-called “desertion” should be immediately pardoned and freed. Not only do people have an inalienable right to quit their jobs; they do not even have a "right" to work for the U.S. military to begin with. How could anyone have a right to work for the state? Truly, forcing people to keep fighting, punishing those who wish to stop, is evil.
Anyone jailed or imprisoned or harassed by the state for their reporting on the war or any other element of the US government should be freed. Describing the details of mass criminality to those being forced to pay for it is not a crime.
"Insider trading" is also a non-crime, and those persecuted for it should be freed. If someone engages in the stock market with information obtained in violation of a contract, that’s one thing. But merely having unique information is not a crime; it is but the reality for all economic actors.
Anyone jailed or imprisoned for violating parole or probation, so long as his acts are not in themselves criminal and especially if his original "offense" was not criminal, must be freed. (A great example of this is the drug offenders who, once released, are stripped of the right to bear arms — a horrible injustice that few in the rightwing pro-gun movement or the leftwing drug reform movement will face head on, since everyone seems to agree that guns in the hands of drug users is scary. But what’s scary is that the state can disarm a whole class of peaceful people and not be condemned for it.)
Anyone jailed or imprisoned solely for driving under the influence should be released. People should be judged by the law only for rights violations, not for the content of their blood stream.
As for intellectual property laws, violators should be freed. Some libertarians disagree on this issue, but it is simply wrong to cage someone or threaten to cage someone for burning a CD.
Anyone who is in prison, jail or the criminal system for violating an arbitrary edict of the regulatory state or failing to pay a fine for such violations must be immediately freed. This includes violation of discrimination laws or other laws that trample on freedom of association, as well as environmental regulations that do not protect property owners from trespass but rather punish people for using their own property as they see fit. Just because the state declares something criminal doesn’t mean it is so.
Anyone jailed or imprisoned for violating the ridiculous Patriot Act provision that made it a federal offense, punishable by prison time, to fail to comply to state laws regarding money wiring services, must be freed. I don’t know if anyone is currently serving time for this, but the first conviction under the Patriot Act was for this type of victimless crime.
Anyone who is rotting in prison, jail or the criminal justice system for using proportional force in defense of his rights must be released, even if those on whom defensive violence was used happened to work for the government. This includes people like Cory Maye, who is in prison and was on death row for having shot and killed and police officer who invaded his home. Using violence against someone in defense of your home, property, liberty or life should no more be a crime if the person killed is wearing a uniform than if he is a common criminal.
Anyone jailed for resisting arrest that was in itself not legitimate — a drug arrest, for example — must be released. In fact, making "resisting arrest" a crime in itself puts the cart before the horse and is based on circular logic, since a person, whether police officer or not, should only have a right to detain someone who is a criminal or is threatening violence.
Anyone who is being detained merely for being an illegal alien, or associating with one, should also be pardoned immediately. Being in violation of immigration law doesn’t in itself mean you are criminal. The problems with mass immigration have nothing to do, necessarily, with the state not approving who is coming in. Indeed, locking illegal immigrants up only costs the taxpayers more money, thus increasing the victimization of the very people who are burdened by welfare handouts to illegals. (On the other hand, protecting private property along the border against trespassers — whether they be illegal aliens or border agents — is also a right, and those who have done so and been arrested should likewise be freed.)
I imagine that all these non-crimes would account for at least a million people in the prisons and jails, and probably millions in the criminal justice system altogether. If I would have to set a timetable, I would say all these people should be freed before Scooter Libby.
But it’s not up to me to set the timetable. All I can do is demand that people not be punished for offenses against the state, whoever they be.
Now, Bush might not even want to pardon Scooter. The administration might see him as a useful scapegoat. It might make them look bad if they do let him free.
Furthermore, if Bush does one day pardon Scooter, it won’t be for the libertarian reasons mentioned above. If he pardons Scooter while keeping hundreds of thousands of innocent, peaceful people in federal prison and not letting American troops out of their indentured servitude contracts, there is no real reason for a libertarian to cheer.
Given how bad a guy Scooter is, I can certainly understand the schadenfreude many people have regarding Libby’s situation. However, strictly speaking, Scooter shouldn’t be punished for what he was convicted of. Rather, he should be held accountable for the war itself — a crime of mass murder, for sure — along with all those who engineered it at the high levels of government.
So there is at least one big difference between Scooter Libby and all the others I have said should be pardoned: The others might have many things to answer for when they’re let out of the big house, but war crimes will not be among them.
Anthony Gregory [send him mail] is a writer and musician who lives in Berkeley, California. He is a research analyst at the Independent Institute. See his webpage for more articles and personal information.