Appeals Court Rejects Plame’s Civil Suit Against White House Officials
Jason Leopold
federal appeals court upheld a lower court’s ruling Tuesday dismissing former CIA operative Valerie Plame Wilson’s civil suit against Vice President Dick Cheney and several other high-level White House officials who allegedly conspired to disclose her covert identity to the media five years ago.
The U.S. Court of Appeals said there was no constitutional precedent established to allow the case to move forward and declined to set one. Additionally, the appeals court said it was reluctant to get involved in litigation revolving around national security issues. The appeals court judges said Plame and Wilson could re-file their lawsuit under the Privacy Act; however, it would not cover claims made against the president or vice president's offices.
Melanie Sloan, the executive director of the government watchdog group Citizens for Responsibility and Ethics in Washington, who represents the Wilson’s, said the plaintiffs are considering "all of their options, which includes appealing the case to the Supreme Court.
"We are disappointed with today’s ruling and are considering all of our appellate options," Sloan said. "It is simply unacceptable for top government officials to be unaccountable for such a gross abuse of their power.
"Here, not only did these officials cause untold harm to two individuals who honorably served their country, they also jeopardized our national security for short term political gain. Courts must be available to remedy precisely this kind of harm to ensure such conduct is neither condoned nor repeated.”
Plame and her husband, former Ambassador Joseph Wilson, sued Cheney, White House Political Adviser Karl Rove, Cheney's former Chief of Staff I. Lewis "Scooter" Libby, Deputy Secretary of State Richard Armitage and other unnamed administration officials for allegedly violating their civil rights.
A federal investigation led by Special Prosecutor Patrick Fitzgerald later found that numerous White Officials--including Cheney and Libby--had retaliated against and sought to discredit Joseph Wilson for publicly claiming that the administration had manipulated prewar Iraq intelligence.
Administration officials countered Joseph Wilson’s criticism by disclosing to reporters, privately, Valerie Plame Wilson worked at the CIA and had arranged to send her husband to Niger to investigate allegations that Iraq tried to purchase 500 tons of yellowcake uranium. The White House was trying to imply that Wilson’s trip was the result of nepotism. Plame Wilson testified before Congress last year that she had had no role in selecting her husband for the mission to Niger.
Libby was convicted on four of five counts and was sentenced to 30 months in prison. President George W. Bush later commuted the sentence, sparing Libby jail time and dangling the possibility of a full pardon later.
U.S. District Court Judge John Bates dismissed the Wilson's civil lawsuit last year. At the time, Bates wrote, as a technical legal matter, the Wilsons can't sue under the Constitution. Bates added that the defendants—Cheney, Rove, Libby, and others—had the right to rebut criticism aimed at the White House by Plame's husband, former Ambassador Joe Wilson, who accused the administration of twisting prewar Iraq intelligence. Bates said the leak of Plame's undercover CIA status to a handful of reporters was "unsavory" but simply a casualty of Joseph Wilson's criticism of the administration.
"The alleged means by which defendants chose to rebut Mr. Wilson's comments and attack his credibility may have been highly unsavory," Bates wrote. "But there can be no serious dispute that the act of rebutting public criticism, such as that levied 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."
“This case is not just about what top government officials did to Valerie and me." Wilson said following Bates’s ruling last year. "We brought this suit because we strongly believe that politicizing intelligence ultimately serves only to undermine the security of our nation. Today's decision is just the first step in what we have always known would be a long legal battle and we are committed to seeing this case through."
Last month, Bates rejected the White House’s claims of absolute immunity for senior administration officials and ruled that former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten can be compelled to testify before Congress.
“The Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context,” Bates wrote in a 93-page opinion. “That simple yet critical fact bears repeating: the asserted absolute immunity claim here is entirely unsupported by existing case law. In fact, there is Supreme Court authority that is all but conclusive on this question and that powerfully suggests that such advisors do not enjoy absolute immunity. The Court therefore rejects the Executive’s claim of absolute immunity for senior presidential aides.
Bates has presided over several controversial legal decisions since his tenure on the federal bench began seven years ago. However, a review of Bates's legal opinions and rulings supporting the Bush administration's penchant for secrecy stand in stark contrast to his legal work as an assistant US attorney working for Independent Counsel Kenneth Starr who prosecuting President Bill Clinton.
In 1997, Bates successfully argued for the release of thousands of pages of White House documents related to Hillary Clinton's conversations about Whitewater.
In January 2003, Senator Patrick Leahy (D-Vermont), chairman of the Senate Judiciary Committee, suggested that the judge was a hypocrite by pursuing access to White House documents when Clinton was in office while supporting Cheney's claims of executive privilege in refusing to turn over his energy task force documents to Congress.
"When that guy was working for Ken Starr, he wanted to go open the dresser drawers of the White House," Leahy said. "I guess it's a lot different when it's a Republican vice president."
Since 2001, Judge Bates has been a staunch supporter of the White House's assertion of executive privilege on a wide range of controversial legal challenges by third parties.
Bates, who was appointed by President Bush in 2001, first came to the public's attention in December 2002 when he dismissed a lawsuit filed against Cheney by the Government Accountability Office that sought access to the vice president's energy task force documents.
In that case, Bates threw out the GAO's lawsuit, stating that the agency lacked the authority to sue the vice president, a ruling that was criticized by the legal community, and one that was similar to a decision he made in the Plame/Wilson case.
Bates's support of the Bush administration's position on secrecy was instrumental in getting the judge appointed to the court set up by Congress in 1978 to monitor domestic spying immediately after the Bush administration said it would start using the court to obtain domestic surveillance warrants.
Bates, who was appointed to the Foreign Intelligence Surveillance Court by Chief Justice John Roberts in February, replaced a judge who resigned in protest following news reports that the White House circumvented the court and spied on American citizens who were allegedly communicating with terrorists. As a judge on the FISA court, Bates reviewed the Justice Department's applications for domestic spying activities in the US and has a final say on whether to approve the requests.