The Journal is referring, of course, to the plight of I. Lewis "Scooter" Libby. The former chief of staff for Vice President Dick Cheney, Mr. Libby has spent the last two years in a legal twilight, after his conviction on perjury and obstruction of justice charges in the Valerie Plame affair.
A Presidential commutation kept Libby out of prison, but he still faces an uphill battle in trying to clear his name. The WSJ believes--as do we--that Mr. Bush should pardon Scooter Libby before he leaves office.
Readers will recall that Mr. Libby was accused of leaking the name of Ms. Plame, a covert CIA employee, to the media. The disclosure came after her husband, former Ambassador Joe Wilson, criticized Bush Administration policies in the Middle East. Never mind that the original "leaker," Deputy Secretary of State Richard Armitage, was identified early on--but never charged with any crime. Or that other officials who had a hand in the scandal also went unpunished.
The case also ignored serious questions about Ms. Plame's status as a covert asset. CIA Director Michael Hayden, anxious to get along with Congressional Democrats, claimed that Plame met the criteria for a covert employee at the time of the leak. But that ignores her identification as a CIA employee--in public registries--years before the leak. We assume that Russian and Chinese intelligence agencies have access to Who's Who where Mrs. Wilson proudly listed her affiliation with the CIA.
Then, there's the matter of her cover, or (more appropriately), her blown cover. Officially, Ms. Plame was listed on the roster of a Boston firm, but that company was exposed years ago as a CIA front operation. The agency's failure to update her cover raised even more issues about her covert status, and the CIA's inability to protect its assets.
But we digress. In the end, Special Prosecutor Patrick Fitzgerald persuaded a federal jury that Mr. Libby was guilty of perjury and obstruction charges, and won a high-profile conviction. Mr. Fitzgerald has since moved on to other, high-profile targets, leaving Libby to plow through life as someone convicted on flimsy grounds, but convicted nonetheless. He now faces mountainous legal bills, diminished prospects for employment and identification as a convicted felon.
Meanwhile, Mr. Armitage remains on the Washington "A" list, as does his former boss, Secretary of State Colin Powell. Both can look forward to years of swell parties, prestigious appointments and hefty speaking fees. We can only wonder if they will reflect on their "missed" opportunity to bring the "scandal" to an early end, by merely acknowledging that Armitage was the original source for the Plame leak, which appeared in a Robert Novak column. But Mr. Powell and Mr. Armitage kept that information to themselves, allowing Libby to twist in the wind.
But a pardon for Scooter Libby isn't the only bit of unfinished legal business for President Bush. In the coming weeks, he should also issue an order to the White House Military Office, directing the declassification and release of service records and performance reports pertaining to Air Force Colonel Michael Murphy, the organization's former legal officer.
Murphy is also in a legal jam. After leaving the White House, the Colonel served as Commander of the Air Force Legal Operations Agency, putting him on the fast-track for flag rank. But a background check revealed that Murphy did not have a law license, or membership in a bar association--essential requirements for any attorney in the armed services.
As investigators continued the probe, they discovered that Murphy sustained the charade for his entire military career. As a civilian lawyer in Texas in the early 1980s, Murphy faced disbarment for failing to adequately represent a client. He then applied for a law license in Louisiana--without informing that state of his troubles in Texas. When the Louisiana bar learned of his disbarment in Texas, they filed a similar motion.
Meanwhile, Murphy joined the Air Force as a Judge Advocate General and advanced steadily through the ranks. Before his tour at the White House, the Colonel served as senior legal officer for two Air Force commands and even led the service's JAG training school. But, once the deception was discovered, Murphy found himself facing a courts-martial on counts of unprofessional conduct, failing to obey regulations and larceny.
Initially, the Murphy affair appeared to be a slam dunk. But as the case moved toward trial, someone at the White House threw the Colonel a lifeline, refusing to release details of his service in the military office on "national security" grounds. Without that information, Murphy's lawyers claimed they could not present the "good airman" defense, contrasting example of past, honorable service against the charges that resulted in the courts-martial. It's a standard element in military trials, and an essential right of the accused.
That argument by Murphy's defense team certainly convinced the trial judge, Army Colonel Stephen Henley. In a ruling earlier this year, Henley determined that, without the good airman defense, Murphy could not be punished for his alleged crimes--even if he is convicted.
The Air Force is appealing that ruling, but there's a strong chance that the military appellate court will uphold Judge Henley's decision. If the ruling stands, it becomes a "stay out of jail" card for Colonel Murphy, effectively undermining the case against him. With the prospect of no punishment, prosecutors may even withdraw their charges against Murphy, assuming that Judge Henley's ruling is allowed to stand.
But this legal quandary can be solved quickly and efficiently by President Bush. With an executive order, he can solve the classification and security issues that (supposedly) inhibit Murphy's "good airman" defense. That would allow the Colonel's attorneys to highlight his past service, while removing potential barriers to punishment, assuming that Murphy is convicted.
President Bush will face many decisions over his last month in office, but in our opinion, few are more important than the cases of Scooter Libby and Michael Murphy. For Mr. Libby, the president can correct a legal wrong, and restore a good man's name.
In the matter of Colonel Murphy, Mr. Bush can strike another blow for justice, eliminating machinations aimed at keeping the former JAG out of Leavenworth. Valid security concerns are one thing, but in the case of Michael Murphy, the White House has seemingly built a wall of protection for its former staffer. As he prepares to leave office, President Bush should remove that barrier, once and for all.