On the day that Scooter Libby's prison sentence
was lifted by President Bush, Mordechai Vanunu was sentenced to prison, again,
in Israel. In both cases, the underlying offense was the same: speaking to journalists.
In each case, the nominal charges were otherwise. For Libby, it was lying under
oath about the circumstances, thereby obstructing justice. For Vanunu, it was
breaking a restriction laid upon him when he emerged from prison three years
ago, after serving an earlier full sentence of 18 years, also for speaking to
journalists: he was ordered not to speak, at all, to journalists or foreigners.
Like a free man, he did both, openly and repeatedly.
But whereas Libby had passed classified information,
and Vanunu had served his earlier sentence for doing
the same, in this instance Vanunu was not charged with
revealing any secrets. The transcripts or published
accounts of his conversations being available, it was
open knowledge that what he had mainly talked about
was the truth of his personal convictions about
nuclear weapons: that they should universally be
abolished, Israel's among them.
Perjury, with the intent and effect of obstructing justice (successfully,
as it happens, in Libby's case) is an ancient, established crime under virtually
any system of justice. Vanunu's act of speaking his mind freely is not, under
existing international human rights law. Nor is it a domestic crime in other
democratic societies. These were not conditions of parole, as frequently misstated.
Vanunu was not paroled from prison for his earlier conviction, but served his
full sentence of 18 years, 11 and a half of them in solitary confinement. Therefore,
under most systems of criminal justice, he should have been subject to no further
restrictions or requirements.
What, then, was the legal status of the restrictions that he has now been
sentenced for violating? The answer is that the Israeli law under which his
speech and movement are restricted is an unmodified relic of the British Mandate
period in Palestine, i.e., a colonial regulation. Nothing like it exists in
any other democracy in the world. It is as if the young United States had reenacted
the British oppressions and restrictions that lead to the revolution, the ones
that were condemned in the Declaration of Independence and banned in the Bill
of Rights. Vanunu mordantly reflected on hearing his new sentence that perhaps
his appeal should be to the queen of England.
There are other differences between the two cases. The clear purpose of Lewis
Libby's conversations with journalists was to discredit someone, Joseph Wilson,
who had publicly told truth that contradicted administration lies. Some of the
classified information he had revealed at the direction of his boss,
Vice President Richard Cheney was itself deliberately misleading about
the basis on which the country had been led to war in Iraq. The passage he revealed
from a secret National Intelligence Estimate was selectively lifted from a context
that included warnings that the estimate in it was uncertain and controversial
within the intelligence community. It was, in fact, mistaken. And by the time
Libby was authorized to release it by the vice president (whose authority to
do so is very much in question), both Cheney and Libby knew that the estimate
being shown was false.
The other piece of classified information Libby revealed was the name and
job of Joseph Wilson's wife, Valerie Plame, a clandestine CIA operative whose
work was to discover patterns of nuclear proliferation in the Middle East. Full
disclosure: I do not consider all classified information sacrosanct or properly
kept secret, and I myself was put on trial for deliberately copying and revealing
classified information, the Pentagon Papers. But I would not have revealed Valerie
Plame's name or clandestine status. She was doing work that unquestionably served
the national security interests of the United States, and for her to do it obviously
required and deserved secrecy.
Moreover, that particular secret (unlike anything in the Pentagon Papers)
was protected by a law passed by Congress, the Intelligence Identities Protection
Act, criminalizing knowing revelation of the identities of covert operatives.
(Whether Libby knew her clandestine status remains unknown and unprovable, thanks
to his lapses of memory, or, perhaps, lies). I don't object to that narrowly-defined
act, whereas I would oppose strongly a general Official Secrets Act such as
Britain's, criminalizing any and all revelations of classified information,
which has so far been precluded from passage by our First Amendment.
There is no question that the information Vanunu revealed to the press in
1986 primarily, that Israel, which has never signed the Nonproliferation
Treaty nor opened its nuclear operations to any international inspection, had
been for some time a nuclear weapons state, with an arsenal larger than that
of Britain and perhaps larger than that of France was regarded as secret
in Israel and his revelation was illegal. On the other hand, no other nuclear
weapons state had kept this status secret from its own people and the world:
again, with the exception of South Africa, which revealed its earlier secret
arsenal at the same time it disbanded it, along with apartheid. Moreover, by
1986 this program (aside from the scale Vanunu revealed, which was a surprise
even to CIA) was a secret almost exclusively from those Israelis and others
(including, officially, the American government) that chose to believe Israel's
ambiguous and deliberately deceptive denials.
In any case, it was information that Vanunu's fellow citizens deserved urgently
to have had long before, in time to reach an informed, democratic judgment and
influence on their country's policy. In my opinion, Mordechai Vanunu did what
he should have with the information he acquired. I hope that I would have done
the same in his position. His readiness to accept the personal risk that his
truth-telling actually entailed that he would suffer a long prison sentence
(and the longest time in solitary confinement known to Amnesty International,
which defined it as a human rights violation) is deserving of worldwide
admiration, and, I hope, emulation. His continued restriction and persecution
after serving his sentence, his new return to prison for six months on a pretense
of preserving 25-year-old secrets that he has yet to reveal (and which the restrictions
do not protect), are illegal and outrageous.
As for Libby, I have no strong opinion on whether his sentence of 30 months
in prison was, as President Bush judged in commuting it, excessive. As Bush
undoubtedly knows in more detail than we do, Libby was only carrying out, routinely,
the wishes and orders manifestly illegal as they were of his bosses.
If this were confirmed by the congressional investigation that should be forthcoming
on the deceptions and violations of law and the Constitution that led us into
war (and may do so again in Iran), it should lead to impeachment and then to
criminal prosecution of Richard Cheney and/or George Bush. But a damper on such
an effort is the now-certainty that conviction of either Cheney or his superior
would be nullified by presidential pardon. It may not be true, as Richard Nixon
declared, that "If the president does it, it is not illegal." But
whatever "it" is, if done or ordered by the president or vice president,
it appears to be unpunishable. As in Israel, rules suited to an older imperial
system, not a republic, are in force.