A decision yesterday by U.S. District Judge John D. Bates threw out the lawsuit
by Valerie Plame against Vice President Cheney and several other government
officials. Several news reports have pointed out that the judge followed a
narrow jurisdictional view of the case; but not much attention has been given
to his reasoning or its implications.
Judge Bates found that government officials are protected under the Privacy Act
from liability for actions performed in the course of their normal duties. "The
act of rebutting public criticism," he wrote, "such as that levied [sic: he
means leveled] by Mr. Wilson against the Bush administration's handling of
prewar foreign intelligence, by speaking with members of the press is within
the scope of defendants' duties as high-level Executive Branch officials."
Notice his choice of words: not prerogatives but "duties." They were obliged by
law and compelled by custom to blow the cover of a CIA agent.
At bottom, the opinion accepts the Cheney Circle view that the vice president's
and the president's men are exempt from inquiry and prosecution. In rebutting
public criticism with a startling private revelation that ended a career, they
were only doing what government officials are expected to do. This amounts to a
simple restatement of the higher lawlessness. Legal action (it is said) against
corrupt conduct by government officials makes political life impossible because
it "criminalizes political differences." But that is to beg the question whether
the ordinary business of government includes the exposure of a secret agent to
the glare of publicity -- an extraordinary action that in other circumstances
might well lead to a charge of treason.
The opinion by Judge Bates declines to say whether the legitimate work of
rebutting criticism includes the newfound power of the vice president to
declassify government secrets by an ad lib process free from oversight. After
the calculated leak, Brewster Jennings, the CIA front that Valerie Plame worked
for when monitoring the purchase of materials for WMD, was dismantled: a result
that must have been thought tolerable by the leakers, and that perhaps was
desired for other reasons. Who profited? Brewster Jennings no longer exists to
sort out the true from the spurious reports of arms procurements by Iraq or,
more to the point, Iran. For the time being, the decision by the district court
has released the administration to "rebut" the next agent who dares to challenge
a public lie about a country the administration wants to attack.
The federal judiciary is thickly planted now with judges who can be relied on
for opinions that cooperate with the claims of arbitrary power. A staff lawyer
for Kenneth Starr from 1995 through mid-1997, John D. Bates was appointed to
the U.S. District Court by President G.W. Bush in December 2001. In December
2002, he dismissed the GAO lawsuit in Walker v. Cheney, which had sought
information about the vice president's secret dealings on energy policy. The
warrant for dismissal, in that case, turned on a failure to demonstrate
"injury." Of course, oversight agencies perform their work in order to discover
injuries; they can hardly name in advance and with perfect precision the
injuries they seek to discover. But such are the arguments by which a political
judge may give his decisions an appearance of standing above politics. In
February 2006, after the resignation from the FISA court of James Robertson -- an
unusual act of protest against the circumvention of FISA by unauthorized
government wiretaps -- Judge Bates was picked by the new Chief Justice, John
Roberts, to sit as the newest judge on the FISA court.