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Thursday, Nov. 3, 2005

The dark side of the Libby indictment

SANTA BARBARA, California -- Arguing with an icon is a loser's game. In America, Daniel Ellsberg is certainly a political and antiwar icon. But I do have a quarrel with him, and it is so serious that I'll take my chances.

It is absolutely unquestionable that Ellsberg's brave decision to leak a U.S. study of the Vietnam War to the news media more than four decades ago is an example of a profile in courage. For without that risk-taking leak, the tragic U.S. war in Vietnam probably would have dragged on longer.

This past weekend in Santa Barbara, California, Ellsberg, the still-modest (but tough!) leftist icon, now 74, was honored with the 2005 Distinguished Peace Leader award by the Nuclear Age Peace Foundation. The ballroom of the Fess Parker's DoubleTree Resort in Santa Barbara was packed with admirers, from the local community and afar. The NAPF, which prioritizes the abolition of nuclear weapons, is a very well-respected West Coast nonprofit organization.

The evening turned out to be especially dramatic because of the serendipity of the scheduling: The day before, as it happened, a far more contemporary leak case was brought to public attention. In this instance, the headlines concerned the indictment of I. Lewis "Scooter" Libby, the U.S. vice president's former chief of staff, who resigned immediately after the announcement of the indictment.

The case against him focused on circumstances surrounding the release of presumably classified information about a CIA agent who happened to be the wife of an Iraq war skeptic. That release -- to discomfort the wife and her husband -- was designed not to shorten a war (e.g., the Vietnam War) but to undermine those who raised questions about it (in this case, Iraq).

Even so, Ellsberg saw a parallel between the two cases. In podium remarks, he said that U.S. government deception regarding the Iraq war reminded him of what occurred in the 1960s and 1970s: ". . . . We were lied to in the (Iraq) war just as we were lied into the war in Vietnam."

Ellsberg himself, eventually indicted, escaped conviction when the indictment was thrown out. Libby faces a legal struggle, though he may not make the long walk to trial alone as additional indictments are possible.

Of this prospect, Ellsberg found pleasure. He said last week's indictment of Vice President Dick Cheney's top aide could well prove "the start of something wonderful" and predicted others would be indicted.

I am less thrilled. For, while I am against the Iraq occupation, I am in favor of maximum press freedom from government. Let me explain:

When Ellsberg was indicted, the main evidence against him was the confidential Pentagon papers that he admitted he leaked to the press. By contrast, the indictment of Libby is supported, in very large part, by the allegedly vivid recollections of news-media professionals to whom Libby confided information.

Assuming the case against Libby does go to trial, the key witnesses against this top White House aide will be journalists. It will be their testimony that will have to convince the jury of Libby's perjury. On the face of it, the case against Libby would appear to be nowhere without their testimony.

In other words, Libby may go to jail because he talked to journalists.

In ordinary circumstances, journalists should not be above the law. But when they are only doing their job -- trying to find out the truth -- law enforcement should resist enlisting them in the effort to seek an indictment. The reason is simple: Should such a trend materialize, it would be unwise for any official to talk to any reporter ever again. Perhaps Libby is guilty of obstruction of justice, perhaps he isn't. But as the evidence against him is primarily that to which reporters will testify, the news media is being co-opted in order to make the prosecutor's case.

Does the end (perhaps incarcerating a government official who lied, and worked for an administration that launched an unwise war) justify the means (subpoenaing and co-opting journalists to in effect become allies of the prosecution)? In some minds, perhaps it does, but not in mine.

The relative independence of the news media -- no matter how vulgar, fraught with commercialism or populated by egomaniacal showboats -- is central to that system's functions. The Libby case crosses a line and compromises the news media.

Unlike Ellsberg, I am not at all happy about last week's indictments. The long-term consequences may prove more harmful to the American way of separation of press and government than Libby's alleged indiscretions and lies. In my view, the past week was a dark hour for American freedoms.

UCLA professor Tom Plate is a member of the Pacific Council on International Policy.
Copyright 2005 Tom Plate

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