Selective Prosecutionby
Dean Lawrence R. Velvel
It has recently been disclosed that Lewis Libby "testified to a grand jury that his ‘superiors,’ whom he did not name, had told him to leak classified information to reporters to justify the Iraq war." (N.Y.Times, February 13, 2006, p. A17.) The information did not, apparently, relate to the identity of Valerie Plame, but was concerned "with a different but related disclosure of classified information from a report about Iraq’s nuclear capability." The information was, apparently, "from a National Intelligence Estimate in June and July 2003" "about Iraq’s nuclear capability." Libby’s testimony became public, it is said, because it was in a letter from prosecutor Pat Fitzgerald that was disclosed by Libby’s lawyers in a filing in his case. The information raises a question not yet mentioned in the media insofar as I know, the question of unlawful selective prosecution. One is not speaking of selective prosecution of Libby, who is not being prosecuted for disclosing classified information but for lying to the grand jury. One is speaking, rather, of those persons whom Bush has ordered found, and whom he and his Administration henchmen have made clear will be prosecuted if found, who have disclosed things that Libby’s two "superiors," Bush and Cheney, did not want revealed – like the secret NSA program of electronic surveillance of American citizens. Persons who have disclosed classified information that Bush and Cheney did not want disclosed will be criminally prosecuted. People who disclose classified information that Libby’s two "superiors" wanted disclosed for their own selfish political purposes, will not be prosecuted for the disclosures. It is obvious that this kind of selective prosecution to advance selfish political objectives is the worst kind of abuse of the criminal law to advance the interests of the group in power. It is an abuse of the executive power in order to make the Executive hegemonous, a result greatly feared by the founders whose views Bush falsely professes to worship, is a major reason why the Alien and Sedition Acts and the prosecutions under them are remembered with horror, and are part of the Bush/Cheney drive to neuter opposition. People who risk their careers and well-being to reveal extremely serious, secret Executive abuses of power will be prosecuted and clapped in jail. People who reveal intelligence secrets that Bush and Cheney want revealed for selfish political purposes will not be. As Abraham Lincoln once said, better to live in Russia where they take their tyranny straight, without the filter of base hypocrisy. One knows, of course, that leaking of classified (and other) information is a way of life in Washington, which may be one of the reasons that disclosure of it generally has not been prosecuted in the past. One also is aware of – even if incredulous about – claims that, by the very act of disclosing classified information or ordering or asking someone else to disclose it, the President, and conceivably even the Vice President, has thereby declassified it so that the disclosure is not a breach of the secrecy of classified information. This argument, of course, is utterly reprehensible, since it gives the President, and maybe even the Vice President (the real President?), the power to determine – on the spot, for purely political purposes, and solely to harm political opponents – what shall not be considered criminal even though, until that very moment, it was criminal. One wonders, would those who take this incredible position say the same if the revelations were of blueprints to build an H Bomb, maybe one that fits into a large suitcase? Or if the authorizing President were Bill Clinton? Why am I dubious? And finally, as the H Bomb example shows, one is aware that there can be cases where disclosure of classified information simply cannot be allowed regardless of what is done in other cases, notwithstanding the leaking culture of Washington. Nothing in the NSA spying on civilians case rises to this level, however, as a month or two of discussion of the matter has shown. The fact that leaking of classified (and other) information is a way of life in Washington, and the utter reprehensibility of the on-the-spot-declassification argument, are, in fact, further reasons why the selective prosecution of executive whistleblowers in the NSA spying matter should not be allowed, are further reasons for non-allowance, that is, in addition to the simple reprehensibility of selective prosecution. Federal courts should be willing to preclude this selective prosecution, and should therefore reject subpoenas sought to further it and should quash trials used to pursue it. The claim of selective prosecution should consequently be usable by news organizations to quash subpoenas by which the Administration is seeking the names of officials who blew the whistle on Bush’s secret NSA surveillance, and by such officials themselves to quash prosecutions if they are found out and prosecuted. The federal courts even have standards, supposedly, that are said to govern selective prosecution, e.g., it is said that there is selective prosecution when others who are similarly situated do not face prosecution and there is an impermissible motive to discriminate. But, if my recollection is correct, the federal courts rarely apply their standards to quash criminal proceedings. Instead, they find reasons why the standards are not met. Given my views of the current, and increasing, virtual worthlessness of the federal courts – which did not in fact do much to curb the Executive in the Guantanamo opinion even though Democrats falsely lauded its writer, O’Connor, as a stick with which to beat Alito, and which contain far too few judges like James Robertson, the federal judge who resigned from the FISA court because of the NSA spying operation – I will not be surprised to eventually find the federal courts saying that the NSA whistleblowers are in a different position than those who are not prosecuted for disclosing classified information, because the latter were authorized to do it by the President or Vice President, or they leaked information that was not about surveillance, or whatever bushwa excuse comes in handy as a reason for supposedly distinguishing between situations. Nor will I be surprised to eventually find the federal courts ultimately saying that Bush, Cheney and company supposedly did not have a motive to discriminate against the NSA whistleblowers by prosecuting them while leaving others alone, but rather had only the motive to punish and prevent leaks of information about electronic surveillance – another bushwa excuse that will come in handy even though favored persons also disclose information on other surveillance of one type or another. No, far from being surprising, this kind of federal judicial bushwa excuse-mongering and cowardice in the face of a powerful Executive is unhappily to be expected these days. But though the federal courts are weaksticks that will not do their duty, this does not lessen the importance of combating selective prosecution that is used by the Executive for purely political profit, that is used to silence political opponents while rewarding political supporters, that is used to increase Executive hegemony. As the abolitionists and the civil-righters did in their own ways in their own days, newspapers and other media that receive subpoenas for information on who blew the whistle, and the whistleblowers themselves if and when discovered and subjected to grand juries or prosecutions, should fight these selective prosecutions in the media and in court: they should fight them in the pages of print media, on the air, and over the internet, as well as making claims in court, however unlikely the courts are to uphold them (just as they refused to uphold the claims of abolitionists). It is only by fighting evil that it can ultimately be defeated, after all. Those who sit back and believe it will go away if they are silent are doomed to defeat, are doomed to live in 1930s Germany so to speak. All that is necessary for evil to triumph, it is rightly said, is for good men to do nothing.
February 16, 2006 Dean Lawrence R. Velvel [send him mail] is an honors graduate of the University of Michigan Law School, has practiced law in the public and private sectors, and been a law professor. He is the author of the quartet Thine Alabaster Cities Gleam. The books in the quartet are entitled: Misfits In America, Trail of Tears, The Hopes and Fears of Future Years: Loss and Creation, and The Hopes and Fears of Future Years: Defeat and Victory. Visit his blog. |