I suppose the most favorable summary of the Libby prosecution would go like this:

(1) The Covert Agent Identity Protection Act is narrowly tailored and not a threat to legitimate whistleblowers.

(2) Nevertheless, there were plausible reasons to suspect that members of the Bush Administration had violated the Act by releasing Valerie Plame’s name. Hence an investigation was appropriate.

(3) A serious investigation required official FBI interviews, subpoenas, and testimony under oath.

(4) In the course of his interviews and testimony, I. Lewis (“Scooter”) Libby lied, thereby committing felonies that had to be prosecuted.

In my view, this four-part argument must be weighed against the precedent-setting interference in personal liberties that (3) implies. To be hauled in front of a grand jury and required to testify is an expansion of governmental power, and it will not be limited to the Plame case, nor to the Bush Administration. One can easily imagine pacifist whistleblowers triggering the same process.

Much depends on whether (2) is valid. And that seems a close call. If the Act truly has limited scope, then perhaps it was pretty obvious that no one had violated it. Then no investigation was necessary (and civil libertarians, despite our abhorrence of the Bush Administration, should have opposed the appointment of a Special Prosecutor). If the Act is pretty broad, then I’m not sure I like it, because it could sweep up courageous whistleblowers as well as Cheney staffers.

Before you read this post, you have to say the title 10 times fast.

Seriously, as a civil libertarian, I find the prosecution of Libby troubling. The whole case started with allegations that members of the administration had leaked true information to reporters. That was an act of speech that involved the press, thus implicating two clauses of the First Amendment. Our first instinct should be to protect such expression.

To be sure, Congress may forbid federal employees from leaking secrets–as in espionage cases. But not every statute that is constitutional is also welcome or wise. This one clearly constrains freedom of speech and the free flow of information, and we should ask whether the price is worth paying.

I am not defending the particular leak that began this case. It supported atrocious behavior: the launch of a disastrous and unnecessary war. I was under the impression, however, that in a free society, the law is blind to the merits and demerits of speech. Moral judgments about expression are to be separated from legal judgments.

Daniel Ellsberg calls the leaking of Plame’s identity, “a very bad leak,” whereas his unauthorized release of the Pentagon Papers was heroic because it helped to end the Vietnam War. But both were acts of speech that could be called “whistleblowing.” We should be careful that by criminalizing some leaks, we don’t criminalize them all.

For example, according to Raymond Bonner in the New York Review of Books, a blond American woman was present in several foreign countries when individuals who had been transported there by the CIA were tortured. I would rejoice if a whistleblower revealed this woman’s identity so that she could be investigated by Congress and the press and we could explore our government’s responsibility for the torture. But if she is a government agent, then revealing her name would violate the same statute at issue in the Libby case.

Libby was not charged with leaking Plame’s name. He was charged with lying to government investigators and a grand jury as part of an investigation of the Plame leak. I will not condone lying, especially under oath. But it is always an expansion of governmental power when someone is forced to talk about Allegation X, for which he is never charged, and then indicted for lying to the police. This is a net that could catch a lot of innocent people.

The leak of Plame’s identity allegedly caused her material harm by ending her career as an undercover agent. The remedy for such damages would seem to be a civil lawsuit. Indeed, Plame and her husband have sued Cheney, Rove, and Libby. That seems perfectly appropriate to me, and if their suit succeeds on the merits, I hope the damages are steep. But a civil lawsuit is entirely different from a criminal prosecution.

Finally, I am relieved to read that the jury did not discuss “the subtext of the trial–the decision to go to war against Iraq. ‘This was not a question about who can we punish for going to Iraq,’ said Mr. Collins, 57, a registered Democrat [and a juror]. ‘We just never allowed ourselves to go there, and I am not going to go there now.'” The decision to go to war was probably the worst–the stupidest and most immoral–act of the United States government in my lifetime. But there was no law against it. Nulla poena sine lege (no punishment without a [clear, written, public] law): that is a bedrock principle. We have no hesitation in upholding such principles when we admire the individuals involved. The test of our commitment to civil liberties is how we respond when abhorrent people are in the dock.

Richard at Philosophy, et cetera has kindly selected this page as a “blog that makes you go hmmm.” In this game, if someone tags you as a “thinking blogger,” you’re supposed to recommend some other blogs that make you think. These days, I mainly read high-traffic political blogs that don’t need any more incoming links. But here are some interesting, quirky, thought-provoking sites:

Bridging Differences is an extraordinary venue for conversation between Diane Ravitch and Deborah Meier. These are two truly distinguished thinkers about American education. They would normally be seen as representatives of opposing, even antagonistic, ideological camps. But they had a very moving exchange in EdWeek last May that demonstrated an ideal interaction between people of good will who disagree. They didn’t suppress their differences in the name of politeness, but they acknowledged the weaknesses of their own positions and the validity of the other person’s views and pledged to address common problems together. Now they have taken the courageous step of starting a joint blog. Counting only the time since Meier founded Central Park East School and Ravitch obtained her PhD, these women have 65 years of combined experience as leading thinkers. I hope their joint blog flourishes and lasts.

In Medias Res is always good. It’s political, but Russell Arben Fox posts longish essays on political theory rather than ephemeral comments on the day’s headlines. His position is distinctive and challenging. For a sample, see his recent summary of communitarianism.

The Citizens Symposium is just getting started, and I don’t know if it will work. But the idea is to solicit and “compile” a set of thoughtful essays on a common topic and then promote discussion.

I just came across Extra Credit last night. This is James Forman, Jr.’s blog about “education, race, kids, and justice.” It so happens that Forman has recently given space to my friend and downstairs neighbor, Colin Bane, and to my friend and former colleague, Arthur Evenchik. But seeing their names was a complete surprise; I started reading this thoughtful new blog because of the seriousness of the topic.

Here is a “wake up call” from Mikva Challenge students, addressed to Chicago’s municipal candidates. Click to play:

A reporter recently asked me how much protest and other activism is going on among today’s youth, compared to their predecessors during the Vietnam era.

In 1973, the General Social Survey asked about five specific forms of protest (prowar, antiwar, civil rights, labor-related strikes, and school events). About 28 percent of the young people in that survey (ages 18-25) said they had participated in one or more of those types of protest.

In 2006, we found that 11.5% of 15-25-year-olds had attended any protest, march, or demonstration (regardless of topic).

Given the different questions, the comparison is not perfect. Still, these results suggest some decline in the rate of physical protest by young people. That trend has to be set against a lot of volunteering and online activism, which Jennifer Earl described recently in the Washington Post. (Her article was entitled, “Where Have All the Protests Gone? Online.”) In our 2006 survey, 15% of the young respondents said they had signed email petitions–less than the 21% rate among older Americans, but still a large number. And if we added other formats, such as social networking sites, we would see even more online activism.