Features

Judith Miller, Scooter Libby, and the trouble with special prosecutors

Libby’s conviction looks ever shakier – and the system that produced it ever more worrying

25 April 2015

9:00 AM

25 April 2015

9:00 AM

Nothing is capable of undermining American democracy more than its legal system. Amid the plea bargains, perp walks and 95 per cent conviction ratings for some crimes, one feature of the system stands out as particularly rank — the role of ‘special prosecutor’. A new piece of evidence relating to a high-profile conviction eight years ago provides a perfect demonstration.

The case relates to a legal dispute spanning President George W. Bush’s period in office. In late 2003 the situation in post-war Iraq had already begun to go horribly wrong. In the US, many who had eagerly supported the invasion and warned of the risks of WMD were flaking away and seeking scapegoats. In the ‘Plame affair’, the perfect outlet seemed to have been provided.

The case revolved around the ‘outing’ of a CIA officer, Valerie Plame. Her husband, the former US ambassador Joe Wilson, had been sent to Africa to inquire into claims by British intelligence that Saddam Hussein had been trying to buy uranium. There was a dispute over the findings and their use and Wilson publicly turned on the administration. For this reason, it was alleged, someone in the administration vengefully ‘outed’ his wife as an agent of the CIA. The case always involved too much detail, and too many egos, personalities and ambitions, to be remotely straightforward. But as the situation in Iraq deteriorated it seemed to many to provide the most promising legal stick with which to beat the administration.

Valerie Plame And Joseph Wilson Hold Press Conference On Lawsuit
Former CIA operative, Valerie Plame and her husband, former US ambassador, Joseph Wilson (Photo: Getty)

In order to find the leak, one Patrick Fitzgerald was appointed special prosecutor. It is a position from which major careers can be made, and so appointees tend to view anything from oral sex to an off-record conversation as a Watergate scandal in waiting. Fitzgerald duly threw himself into the role, summoning, questioning, and hauling before grand juries both journalists and members of the administration.


We now know that from the time of his appointment in December 2003 Fitzgerald had already known that the person who had first leaked Plame’s identity to the columnist Robert Novak was Richard Armitage from Colin Powell’s office. This fact was publicly disclosed in 2006. But that clearly wasn’t enough for Fitzgerald’s appetite, and so the hunt went on after the source had been found. Along the way Fitzgerald discovered that the star New York Times reporter Judith Miller had had several conversations with Scooter Libby, Vice President Dick Cheney’s chief of staff. Miller had never even written about Valerie Plame — the only cause of the investigation being ordered — but Fitzgerald ordered her to hand over her notebooks anyway. Miller refused, citing her journalistic duty to protect sources, and so went to prison for three months for protecting sources over a story she never wrote.

Bush Discusses O'Connor Retirement From Supreme Court
Former U.S. Vice President Dick Cheney with adviser Scooter Libby (Photo: Getty)

All the time Fitzgerald clearly had higher targets in his sights. Special prosecutors have two particularly effective weapons available to them. The first is to wear their subjects down, chasing them from charge to charge until they can find something — anything — even if it has to be ‘obstruction’ during an investigation that need never have commenced. The second is to offer them a way out by handing over someone higher up. Fitzgerald appeared to deploy both tactics shamelessly. On at least two occasions, as the investigation dragged on, Libby was told that all charges against him could be dropped if he only ‘delivered’ his boss, the Vice President. Because there was nothing to ‘deliver’ on Cheney, Libby refused. So Fitzgerald continued the pursuit. By the time Scooter Libby was tried in 2007 it wasn’t for anything to do with the Plame leak — everyone then knew Armitage had taken responsibility for that — but for lying to federal officials about what he had said to three reporters, including Miller.

It is relating to this part of the story that an extraordinary new piece of information has come to light. After her spell in prison, and with her job on the line, Miller was eventually worn down to agree to hand over some redacted portions of notes of her few conversations with Libby. Several years on, she could no longer recall where she had first heard of Plame’s CIA identity, but her notes included a reference to Wilson alongside which the journalist had added in brackets ‘wife works in Bureau?’ After Fitzgerald went through these notes it was put to Miller that this showed that the CIA identity of Plame had been raised by Libby during the noted meeting. At Libby’s trial Miller was the only reporter to state that Libby had discussed Plame. His conviction and his sentencing to 30 months in prison and a $250,000 fine, rested on this piece of evidence.

But Miller has just published her memoirs. One detail in particular stands out. Since the Libby trial, Miller has read Plame’s own memoir and there discovered that Plame had worked at a State Department bureau as cover for her real CIA role. The discovery, in Miller’s words, ‘left her cold’. The idea that the ‘Bureau’ in her notebook meant ‘CIA’ had been planted in her head by Fitzgerald. It was a strange word to use for the CIA. Reading Plame’s memoir, Miller realised that ‘Bureau’ was in brackets because it related to her working at State Department.

Journalists Judith Miller And Matthew Cooper Face Jail Time
Judith Miller and her lawyer Bob Bennett arrive at U.S. District Court. Miller  refused to identify sources when reporting on the identity of covert CIA operative Valerie Plame (Photo: Getty)

At his trial, Libby’s defence team had tried to bring in Harvard’s Daniel Schacter to testify. Schacter is an expert in memory and author of the brilliant and haunting book The Seven Sins of Memory. He would have shown how common ‘misattribution’ — the way in which people replace one version of memory with another — can be. The judge rejected the witness, but the jury could have done with him. Years after her interviews with hundreds of interviewees, Miller had had it suggested to her that her source for hearing about Plame was Libby and she had erroneously agreed.

Why does all this matter? First, because Scooter Libby was wrongly convicted and remains unpardoned. Secondly, because of the insight the case gives into the failings of American justice. Libby and Miller are relatively lucky people, with voices and some remaining influence. How many people with no profile or defenders fall victim to such politicised or careerist prosecutors?

And finally, it matters because of the damage the whole sorry affair did to America and Iraq. The administration made whole piles of errors, but members of the administration have admitted in recent years that the investigations into the Plame affair distracted the entire White House at a time when its single-minded focus was desperately needed elsewhere. Libby had been an advocate — from 2003 — of a ‘surge’ operation in Iraq, increasing forces to protect Iraqi lives. Fitzgerald’s pursuit not only forced him from office but significantly absented from discussion a policy which Libby was then (four years before the ‘surge’) almost alone in advocating. The final irony of the whole case is that the special prosecutor wanted to locate a Watergate. What he did instead helped fan a Vietnam.

Douglas Murray is an associate director of the Henry Jackson Society, and the author of Neoconservatism: Why We Need It. He blogs at spectator.co.uk/douglasmurray

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Show comments
  • StrategyKing

    Aah nice. You neo-con lot don’t give up do you? Now you’ve found yet
    another even more far fetched excuse for your failures then. Pathetic.

    • WFB56

      A ridiculous comment, this isn’t a story about the Iraq war, its a story about prosecutorial abuse and the politicisation of the legal system.

      • mikewaller

        Bang on the money! Strategy King?Strategy Idiot! Lawyers are a self-regarding, self-serving elite who badly need sorting out. The bedrock idea that it is their professional duty to do almost anything to bring the brief they have been given to a successful conclusion, is a cancer within the justice system.

      • albert pike

        “A ridiculous comment, this isn’t a story about the Iraq war,”

        Yes it is.

        He tried to shut up Valerie Palme’s husband who stated the zionist claim that Iraq had bought yellow cake uranium from Niger was false

        • WFB56

          There’s nothing in this story, even tangentially, about Iran; its about prosecutorial abuse in the US.

          • albert pike

            “There’s nothing in this story, even tangentially, about Iran;”

            It’s about Israel Firsters who are prepared to deceive, in order to bring about war, and the power they have in the USA, and Britain, as this article clearly demonstrates. This article is an attempt to clear the name of an Israeli spy and American traitor and has absolutely nothing to do with justice.

            If the writer wanted to highlight the perversity of the US justice system there are many other examples he could have turned to..

            http://www.vanityfair.com/news/2006/07/yellowcake200607

        • Damaris Tighe

          Ha ha. You’ve managed to do it again. You’ve brought the ‘zionists’ into an article about the American justice system (& tangentially Iraq). You really are a one-trick pony.

          For your next trick I suggest a comment about ‘zionists’ on a thread about mobility scooters.

  • Verbatim

    Phew! For a minute there I thought this was yet another article on mobility Scooters!!

  • Tom M

    Your right about one thing Douglas, it is complicated.

  • Terence Hale

    Hi,
    There are deep laying concept of our diplomatic relations with America. How much must we sacrifice to a friend that is a “Feind”.

  • WFB56

    The US Justice system is a disgrace and Patrick Fitzgerald is the poster boy for prosecutorial abuse by a craven careerist.
    There is, however, no hope in sight as the Holder Justice Department has taken a bad situation and made it worse.

    • albert pike

      Just because American justice is a disgrace, it doesn’t mean Libby isn’t guilty.

      And I am pretty confident that we will see Mr. Scooter exonerated and handed a great big wad of taxpayer’s cash for the time he spent in open prison.

      However, this Libby episode, which had to do with Israel’s desire to influence US policy on Iran, is just a small a part of much a bigger trial against AIPAC which had to be dropped because the US media demanded that the government did not produce its classified evidence in secret. Not doing so would have put even more government agents at risk and the case had to be dropped.

      The interesting part of the story is that the US media were more interested in protecting AIPAC than defending its own country’s interests.

      http://original.antiwar.com/justin/2007/06/15/scooters-fate-i-say-torture-him/

      “It is important to keep in perspective what Mr. Libby did and continues
      to do. He was convicted because he lied to the FBI and to the Grand
      Jury in order to obstruct a federal investigation. His efforts in this
      regard have in fact proven to be successful in that the FBI and the
      Special Prosecutor have not been able to determine anything other than
      that there was a conspiracy to expose the identity of a CIA operative.
      The full details of the crime will likely never be known nor will
      responsible individuals be prosecuted because of people like Mr. Libby.

      “Moreover,
      and for purposes of sentencing, special attention should be drawn to
      the fact that the crime is ongoing. Mr. Libby was found guilty of
      obstructing justice, and he is continuing to do so by not correcting the
      record and not cooperating with the Special Prosecutor’s investigation.
      He is not only remorseless, but he continues to further the efforts of
      those who would conceal the original crime.”

      • Mr B J Mann

        Did you not actually bother to read the article then?!?!?!?

        • albert pike

          Is there something in the article that you think I’m missing?

          Out with it…………..

          • Mr B J Mann

            Yes, all of it.

          • Mr B J Mann

            As you struggle, here’s a few relevant excerpts.

            A new piece of evidence relating to a high-profile conviction eight years ago provides a perfect demonstration…

            The case revolved around the ‘outing’ of a *CIA* officer, Valerie Plame…. it was alleged, someone in the administration vengefully ‘outed’ his wife as an agent of the *CIA*….

            It is relating to this part of the story that an extraordinary new piece of information has come to light… her notes included a reference to Wilson alongside which the journalist had added in brackets ‘wife works in *Bureau*?’ After Fitzgerald went through these notes it was put to Miller that this showed that the *CIA* identity of Plame had been raised by Libby during the noted meeting. At Libby’s trial Miller was the only reporter to state that Libby had discussed Plame. His conviction and his sentencing to 30 months in prison and a $250,000 fine, rested on this piece of evidence…..

            Since the Libby trial, Miller has read Plame’s own memoir and there discovered that Plame had worked at a State Department bureau as cover for her real *CIA* role. The discovery, in Miller’s words, ‘left her cold’. The idea that the *‘Bureau’* in her notebook meant *‘CIA’* had been *planted* in her head by Fitzgerald….

  • MacGuffin

    Good Lord. Well, I suppose it was inevitable that the revisionism would start.

    ”If only we hadn’t been so beastly to Dick Cheney and his henchmen, everything would have been fine!!!”

  • Jackthesmilingblack

    Whistle blower is an endangered species.

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