Commentary: Patrick Fitzgerald strikes out

U.S. Attorney Patrick Fitzgerald during a press conference at a Dirksen Federal Building on Dec. 9. 2008 in Chicago, Illinois. (Chuck Berman/Chicago Tribune/MCT)
U.S. Attorney Patrick Fitzgerald during a press conference at a Dirksen Federal Building on Dec. 9. 2008 in Chicago, Illinois. (Chuck Berman/Chicago Tribune/MCT) MCT

When U.S. Attorney Patrick Fitzgerald was investigating the leak of a CIA officer's name a couple of years ago, he bullied witnesses, threw innocent people in jail and generally acted like J. Edgar Hoover on the trail of a commie spy — and his noisiest cheerleaders were American liberals, thrilled by the discovery that prosecutorial abuse can be fun when you're directing it at the Bush administration.

I wonder if they'll like it as much now that Fitzgerald is slapping around the First Amendment.

Fitzgerald and his Justice Department pals, outraged by this week's publication of a critical book they've tried to kill for two years, are threatening to sue not only the author and publisher, but even bloggers.

The book, Triple Cross by former ABC reporter Peter Lance, tells the story of al-Qaida master spy Ali Mohamed, who infiltrated the CIA, the Green Berets and the FBI while laying the groundwork for Osama bin Laden's campaign of terror that culminated in the Sept. 11 attacks. Mohamed passed his Green Beret training along to a terrorist cell in New York, which killed Rabbi Meier Kahane, bombed the World Trade Center in 1994 and planned to blow up bridges into the city in what became known as the "Day of Terror" attacks.

That Day of Terror never dawned; cell members were successfully prosecuted by Fitzgerald, then an assistant U.S. attorney in New York, in the case that earned him the reputation as the nation's law-enforcement ace on terrorism. Triple Cross, however, argues that Fitzgerald and the Justice Department muffed chance after chance to roll up al-Qaida's U.S. network (including some 9/11 hijackers) and deliberately discredited intelligence on al-Qaida from a jailhouse snitch that might have exposed FBI screw-ups.

That's not the kind of fawning press Fitzgerald is accustomed to, particularly since his term as special prosecutor on the Valerie Plame leak case. By any objective standard, the case was a legal flop and an insane waste of resources: Assigned a relatively simple task – finding who leaked Plame's CIA identity to the press – Fitzgerald spent three years and almost $3 million and in the end couldn't even prove the leak broke the law; the leaker, State Department official Richard Armitage, was never charged with anything. And though Armitage confessed the leak to Fitzgerald almost immediately, the prosecutor kept it secret and continued his investigation for years, inflicting huge legal bills on Bush staffers who would never be charged and even jailing New York Times reporter Judith Miller for three months although she'd never written a word about the case.

When a special prosecutor strikes out that way against anybody else – say, Bill Clinton – he's vilified as a vindictive judicial inquisitor. Fitzgerald, however, was the American left's dream warrior, criminalizing policy debate over the Iraq war and exacting a revenge that voters refused to deliver in the 2004 election. He became a media folk hero – even made People magazine's Sexiest Men Alive list.

Given the mountain of good press Fitzgerald got for the molehill of results on the Plame case, it's not surprising that smoke started belching from his ears when Triple Cross was published in 2007. But he didn't just call a press conference to defend himself, he wrote a scorching letter to the publisher to "demand" – his word – the book be yanked off shelves. When HarperCollins didn't get with the program, Fitzgerald wrote a second letter – and just to be sure the company knew who it was messing with, he faxed it from the U.S. attorney's office in Chicago.

Fitzgerald didn't succeed in killing Triple Cross, but he managed to keep the paperback version off the market for more than a year while HarperCollins and its lawyers went over the text line by line. Meanwhile, increasingly bellicose letters from Fitzgerald have continued at regular intervals. "I write to demand immediate compliance with my demands of October 2007," said one. When a lawyer uses the word "demand" twice in six words, you know his subpoena-finger is twitching. And when HarperCollins announced that the paperback, essentially unchanged, would be published, Fitzgerald's target list expanded.

A blogger who wrote about the book two weeks ago was immediately warned by one of Fitzerald's former Justice Department buddies that he might be breaking the law and had better get an attorney.

Just as he sought to criminalize disagreements over the Iraq war, Fitzgerald is now trying to force criticism of his performance as a public official into a courtroom. Libel law was never intended to protect the government from its own constituents. "Fitzgerald is just going to have to have a thicker skin," says Jan Schlichtmann, the attorney whose tangle with the chemical industry was dramatized in the film A Civil Action. "If he wants to defend himself against criticism in the book, do it in the marketplace of ideas. He shouldn't use his public office to be a gatekeeper. Patrick Fitzgerald is not supposed to be the one who decides what we read and what we discuss."

Sadly, that's going to be news to Fitzgerald.