A Culture of Strife
December 3rd, 2005
Clarice Feldman

The criminalization of politics has deeply wounded our nation. At a time when we struggle for national survival in a war with those who would destroy us, the combination of a partisan press with an opposition more focused on political advantage than winning the war could prove lethal.

The culture of strife in our nation’s capitol is unabating and now poses a greater threat to our well-being than hurricanes or Saddam or Osama. The surest evidence of this is the media’s and opposition parties’ incessant call for special prosecutions concerning matters of no import and their blithe feigned ignorance concerning matter of high import. It is obvious that the justice system has become the battleground of choice for those unable to prevail through the electoral process and it is beyond doubt that the oppositional press will never make demands for appointment of special prosecutors concerning serious breaches of national security – if those breaches can be construed as being detrimental to the majority party.

The argument against special or independent prosecutors has been made so often and so well, that little can be added. Those who opposed the creation and now the extension of laws which remove investigations involving high level officials suspected of violations of law from the oversight of the Attorney General have noted that such proceedings lack the time, money and docket constraints of U.S. Attorneys. They also note that such investigations are not subject to the electoral system checks on overreach. Such prosecutors are virtually un-removable, focused solely on one matter and continue to pursue the issue long after U.S. District Attorneys would have stopped the investigation and concluded that prosecution is unsustainable or inappropriate. Even the most ethical of such prosecutors are not immune to the pressure to indict in order to justify the expenditures and to provide evidence of independence and skill.

Despite these well-founded critiques, we see no end to calls for more of them. Why?

It cannot be the stated reason – that an independent investigation and report to the public is essential to clarify the facts for the public and bring about needed change. For, as we have shown in the Barrett case the critical portions of the report will never be seen by the public, and yet the press has remained silent about that and as we have further seen, the National Archives has not made available other critical reports and there has been no outcry about that either. Finally, I have no recollection of a single independent or special prosecution which resulted in any significant change in law or policy.

Is it that we have such suspicion and envy of those we elect to office (and the staff they engage) that we have become addicted to the process which assures us that at least one high flyer will be tarred and embarrassed (even if no conviction ultimately is obtained)? Or, is it that as politics have become increasingly polarized neither side wishes to give up this weapon?

Whatever the explanation (and I think it’s both, with the public having been inured to the circuses and the politicians unwilling to disarm), it’s time the voters understand that the process of special prosecutions is wreaking a far higher cost than they may fully understand:

It is a major distraction to the good functioning of government.

It makes it even harder than it already is to attract the best candidates to government service.

It causes the expenditure of vast sums of money and resources on trivial matters while larger, more significant areas of inquiry are ignored.

The charges often have a partisan advantage for those who seek them and for the media which support that agenda.

The end result is that serious issues which require greater inquiry are not treated seriously and mere political disagreement becomes criminalized.

That certainly is the case with the Plame investigation, where two years of prosecutorial efforts and millions of dollars (not to say the major distraction and financial hardship of huge legal fees of White House officials) have, as Christopher Hitchens trenchantly observes established only, “the non-commission of non-crimes and the non-outing of a non-covert CIA bureaucrat”.

Contrast this expensive, time consuming investigation (for both the Special Prosecutor and the White House officials already pressed to the limits with other responsibilities, including in Libby’s case, the war) which turned up no evidence that anyone in the White House outed a covert agent, with other very substantial leaks of highly classified material which did affect the national security and have largely escaped scrutiny.

The CIA’s war against the Bush administration is one of the great untold stories of the past three years. It is, perhaps, the agency’s most successful covert action of recent times…. In one leak after another, generally to the New York Times or the Washington Post, CIA officials have sought to undermine America’s foreign policy. Usually this is done by leaking reports or memos critical of administration policies or skeptical of their prospects. Throughout it all, our principal news outlets, which share the agency’s agenda and profit from its torrent of leaks, have maintained a discreet silence about what should be a major scandal.

Recent events indicate that the CIA might even be willing to compromise the effectiveness of its own covert operations, if by doing so it can damage the Bush administration. The story began last May, when the New York Times outed an undercover CIA operation ($link) by identifying private companies that operated airlines for the agency. The Times fingered Aero Contractors Ltd., Pegasus Technologies, and Tepper Aviation as CIA-controlled entities. It described their aircraft and charted the routes they fly. Most significantly, the Times revealed ($link) one of the most secret uses to which these airlines were put:

“When the Central Intelligence Agency wants to grab a suspected member of Al Qaeda overseas and deliver him to interrogators in another country, an Aero Contractors plane often does the job. The Times went on to trace specific flights by the airlines it unmasked, which corresponded to the capture of key al Qaeda leaders.”

The author goes on to describe the damage done to our war efforts as a result of the leaks to the Washington Post and the New York Times of such sensitive information and observes:

“It is striking that top-level CIA officials are evidently willing to do serious damage to their own agency’s capabilities and operations for the sake of harming the Bush administration and impeding administration policies with which they disagree.

“The CIA is an agency in crisis. Perhaps, though, there is a ray of hope: the agency has referred the secret-prison leak to the Post to the Justice Department for investigation and possible criminal prosecution. It is a bitter irony that until now, the only one out of dozens of CIA-related leaks known to have resulted in a criminal investigation was the Valerie Plame disclosure, which was trivial in security terms, but unique in that it helped, rather than hurt, the Bush administration.”

It seems obvious that these leaks are of much greater magnitude than the Plame non-leak, and yet no Congressman nor major press outlet has clamored for a special investigation. It seems obvious that since we know the reporters to whom the information was leaked, making them at least witnesses to and at most accomplices in criminal acts, substantial efforts would be made to get them to testify as to their sources – but I haven’t seen it.

It seems obvious that the only difference in the treatment of these leaks, is that the phony claim about the “outing” of Plame, though of no real moment and indeed never proven or even charged, carried with it some perceived partisan advantage to the President’s critics, while the CIA leaks which were far more serious and damaging to the national interest may well prove harmful to his opponents. And the major media which clamored for the Plame investigation have treated the intelligence leaks as acts taken in the public interest, because the media evidently shares a belief with the leakers that that wounding the President, regardless of the effect on the war effort and our own national security, is of paramount importance.

I wish I had some clever suggestion to change the climate of strife, but I don’t. Indeed, with the most recent big story that gasp the U.S. was trying to plant true , positive news stories in Iraq, I think the opposition and the press have lost all sense of perspective. I never thought I’d see the day that a charge that we were engaged in propaganda against the enemy in war would be regarded as a serious offense on a par with torture or carpet bombing of civilians. But, indeed, it has. Congressman Waxman has already called for hearings. Can a demand for a special prosecutor be far behind? Clarice Feldman is a frequent contributor.