Why don’t we arrest Chalabi?

Because he didn’t commit any crimes. He remembered what the neocons forgot: he’s an Iraqi, owing loyalty to his country, not ours.

Josh Marshall and Brad DeLong are wondering why Chalabi hasn’t been arrested in connection with his apparent gift to the Iranians of one of our most precious secrets: that we’d broken the Iranians’ codes.

It’s a good question, but it has a simple answer: Chalabi didn’t break any of our laws.

He’s not an American. He didn’t have a security clearance. He’s a Shi’a Iraqi and the head of a political party, the INC, and he owes loyalty to (in some order) his country, his sect, and his party. If he persuaded some of the neocons that he was “one of us,” that was a sharp move on his part and a mistake on theirs, but, as Lincoln would have noticed, calling an Iraqi an American doesn’t make him one.

Since Chalabi owes no loyalty to the United States, he is, as purely logical matter, incapable of betraying the United States. And it’s not a crime for a foreign national who has never signed a security agreement to do whatever he likes with information someone hands him. (If there were evidence Chalabi had paid for the information of stolen it, that would be a different matter; then he would arguably be a spy, and criminally chargeable as such. But so far there’s no evidence of that.)

So it was neither disloyal nor illegal for him to take information some American official gave him and use it as seemed best to him for the good of his country, his party, his sect, and himself. If he acted contrary to the interests or laws of Iraq, that’s for the Iraqis to decide.

But it was illegal (though not, I’m sure, subjectively disloyal) for the American official, whoever he was, to share such a sensitive secret with a foreigner. And that’s why it was illegal: foreigners aren’t to be trusted with such secrets.

Similarly, if Chalabi did in fact help con the United States into liberating his country from a tyrant that’s something he can legitimately brag about. (Though it was somewhat impolitic of him to do so as volubly as he did.) Deception is, after all, a legitimate tool of diplomacy. If Franklin deceived the court of Louis XVI into providing help to the American Revolution, would anyone call that misconduct on Franklin’s part?

What seems to have happened here is that Chalabi remembered where his loyalties lay, while his neocon sponsors forgot. He conned them. Their bad, not his.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com