Pardoning Libby

Announcement:

In my new efforts to add a bit more work rather than just writing these long essays, I have created a second blog called Atheist Ethicist Journal to deal with a number of smaller projects. My introductory message mentions Wikipedia and Borofkin’s decision to create a mini wiki on desire utilitarianism, and some effort that those who have wanted to volunteer could contribute.

The second blog will allow me to make minor follow-up comments on the news of the day relevant to my longer essays here, illustrate progress in my various tasks, and communicate in a less rigid and formal way with those who have expressed some interest in my work.

Essay: Pardoning Libby

This post is on the prospects of pardoning I. Lewis "Scooter" Libby. However, it is not an argument for why it should not be done. It is written in condemnation of some of the arguments given for saying it should be done.

It also raises concerns about those who would use a particular argument against a pardon.

According to the Washington Post,

. . . aides worry about the political consequences of stepping into a case that stems from the origins of the Iraq war and renewing questions about the truthfulness of the Bush administration.

This would be like a staff member for some congressman saying that he is concerned about the congressman having sex with underage pages because of the "political consequences" of such an act.

"Political consequences" is a second line of defense - one that is only used when the first line of defense, "because it is wrong," has already been breached.

When both psychological barriers against wrongdoing have been breached - the ‘because it is wrong’ barrier and ‘because of the political consequences’ barrier – we get Vice President Cheney, and others who actually favor a pardon.

Libby was convicted of interfering with an investigation into who was responsible for outing an undercover CIA operative. We have a conviction here, so the “presumption of innocence” that I argued for in earlier postings on the subject no longer apply. We are now free to presume guilt.

We are now free to presume that Libby intentionally misdirected investigators who were seeking to determine if somebody compromised our national security and, if so, to identify and punish that person (or those persons).

What should we do with people who intentionally interfere with attempts to discover those who compromise national security? We are not talking about somebody who exercises known Constitutional rights, like appealing to the 5th Amendment. We are talking about somebody who performed acts that are illegal and that have no Constitutional protections.

Assume that your child is missing. The police are interrogating people trying to discover where your child is at. One person intentionally lies to investigators and conceals information that the investigators have a legal right to acquire. Your child is still missing, and we know that this person intentionally misdirected or obstructed legitimate Police attempts to find her. He has been tried and found guilty in a court of law, so this is not mere idle speculation.

Would you argue that this person should be pardoned?

We have as much or more reason to react to somebody who obstructs an investigation into a potential breech of national security as we would react to somebody who obstructed an investigation into your child’s disappearance.

Now, imagine how you would react to people who said that this person who obstructed an investigation into your child’s disappearance should be pardoned because the police (obstructed, as they were, in their investigation by this person) never found out what happened to your child.

The National Review

According to the Washington Post:

[The conservative National Review] magazine contended that Libby had been "found guilty of process crimes," even though the special prosecutor never brought charges relating to the leak of CIA officer Valerie Plame's name: "He is a dedicated public servant caught in a crazy political fight that should have never happened, convicted of lying about a crime that the prosecutor can't even prove was committed.

We can see the moral principles that the editors of the National Review want us to live under by applying their morality to the case of your child’s disappearance.

Anybody who successfully obstructs an investigation into a child’s disappearance, where the police fail to discover what happened, shall be considered innocent of all wrong doing and, if convicted of a crime, shall be pardoned. The reason they shall be pardoned is precisely because the police failed to discover what happened to the child.

This is in spite of the fact that this individual has been convicted of deliberately misleading the investigation, making it harder for the police to actually discover what happened to your child. This conviction, according to the moral principles endorsed by the editors of the National Review, counts for nothing if your child remains lost.

The Weekly Standard

The Washington Post reports that:

The Weekly Standard followed with a cutting article accusing Bush of abandoning Libby: "So much for loyalty, or decency, or courage. For President Bush, loyalty is apparently a one-way street; decency is something he's for as long as he doesn't have to ake any risks on its behalf; and courage - well, that's nowhere to be seen. Many of us used to respect President Bush. Can one respect him still?"

Frankly, what passes for morality in the Weekly Standard is the type of behavior we would expect from an organized crime family. Whether an act is legal or illegal is does not matter. All that matters is whether the accused is a member of the family. Members of the family can violate laws and harm others with impunity. Only those who are not members of the family need to worry about consequences.

This is nothing but an invitation to lawlessness and obstruction in the Executive branch. The Weekly Standard is effectively saying that, “All key advisors who materially contribute to a failed investigation into matters that might embarrass the Administration should be rewarded for their efforts with a Presidential pardon.”

According to the Washington Post:

Former New York mayor Rudolph W. Giuliani and former Massachusetts governor Mitt Romney said that they would seriously consider pardoning Libby. . . . Sen. Sam Brownback (Kan.) and Rep. Tom Tancredo (Colo.) said flatly that they would pardon Libby. . . . Former Tennessee senator Fred D. Thompson, a presumed candidate who did not take part in the debate, is a member of Libby's legal defense fund and has called for a pardon.

Giuliani, Romney, Brownback, Tancredo, and Fred Thompson, all need to face a follow-up question. “Are you not saying that a member of your staff who is convicted of perjury an obstructing an investigation that may prove embarrassing to your administration can expect a Presidential pardon as a reward for his efforts?”

The Post reports that Giuliani added, “What the judge did today argues more in favor of a pardon because this is excessive punishment."

If Giuliani wants to set up a commission to investigate all sentences and offer pardons to anybody who his commission judges to have been given excessive punishment, this would be an option. However, for him to single out a member of the Administration for special treatment, while all others who suffer from excessive punishment languish in prison, is unfair favoritism. In effect, this states that the President should feel free to interfere with the criminal courts whenever his or her friends are involved.

The same response applies to Romney’s claim that, “[T]he prosecutor ‘clearly abused prosecutorial discretion.’” The courts have a built-in appeal process for dealing with these types of issues. If they do not determine that such an abuse took place, there is no justification for a pardon. If they determine that such an abuse did take place, then there will be no need for a pardon. Either way, the President has no moral justification for getting involved.

Five Republican candidates for President, including the front-runners, have announced that their staff should feel entitled to Presidential interference in criminal processes on their behalf. If they are caught and convicted of interfering with an investigation that may prove embarrassing to the President, then they should expect to be rewarded for their efforts with a Presidential pardon.

Giuliani might limit his interference to cases of “excessive punishment”, and Romney might limit his to “clearly abused procedural discretion,” but we have reason to wonder what would count as “excessive punishment” or “abused discretion” in these cases. We have reason to wonder how worried their staff members will be when it comes to interfering with investigations of their administrations.