March 6, 2007

Francona on Libby verdict: Change the law!

This article appeared on MSNBC Hardball Hardblogger

I had mixed thoughts as I heard the guilty verdicts read today. In 1991, after my return from Operation Desert Storm, I was assigned to the team drafting the Defense Department’s report on the war – Scooter was an Assistant Secretary of Defense in charge of the effort. It was Scooter Libby that pinned on my Bronze Star in a Pentagon ceremony.

I also recall serving at the U.S. embassy in Baghdad in the late 1980’s, the same embassy where Joe Wilson later served as the deputy chief of mission. Joe did an outstanding job during those initial months of Iraq’s invasion of Kuwait and the subsequent evacuation of American citizens and embassy staff.

Both men have served their country well. What continues to bother me is how these two public servants have ended up on opposites of a legal battle. The jury found Scooter Libby guilty of obstruction, false statements and perjury. What they did not find him guilty of is releasing the name of an intelligence officer under the Intelligence Identities Protection Act of 1982. Nor should they have.

I am not a lawyer, but in my over 27 years as in intelligence officer, I know the rules on protecting the names of American intelligence officers and, more importantly, the foreign agents who we have recruited to provide us with otherwise unobtainable information. According to the extremely narrow and precise wording of the 1982 law, convicting anyone of violating this law is very unlikely. For example, the law requires that the person whose identity is to be protected has to have served in a covert or clandestine capacity overseas in the five years preceding the offense.

Why the arbitrary time period? Clandestine intelligence officers and their recruited assets need protection virtually the rest of their lives. If I was an officer of a foreign security service and knew that Mrs. Wilson had ever been in my country, I would find out everyone she ever talked to and determine just what was told to her – and that search would not be limited to the last five years. There is no convenient statute of limitations in other countries for this kind of activity, and given the places we have to operate, detection of – or in some cases, mere suspicion of – cooperation with an American intelligence service means lifelong incarceration at best, or a slow, agonizing death at worst.

If anything good comes out of this case, let’s hope it is better legislation that provides real protection to our intelligence officers and the people they need to recruit.