The LATimes reports:
A federal judge today dismissed a lawsuit by former CIA operative Valerie Plame and her husband seeking damages against Vice President Dick Cheney, former Cheney aide I. Lewis "Scooter" Libby and two others she accused of conspiring to disclose her identity.
Plame and her husband, former diplomat Joseph C. Wilson IV, had alleged that Cheney, Libby, White House political advisor Karl Rove and former State Department official Richard L. Armitage had violated their constitutional rights in the events that led to Plame being identified in news reports in the summer of 2003.
U.S. District Judge John Bates rejected the lawsuit in a 41-page ruling today.
Without offering an opinion on the merits of the case, Bates said it was barred by other statutes that Congress had enacted to cover instances of alleged harm to CIA operatives and other federal employees.
"The court finds that, under controlling Supreme Court precedent, special factors — particularly the remedial scheme established by Congress in the Privacy Act — counsel against the recognition of an implied damages remedy for plaintiffs' constitutional claims," the judge ruled.
Bates also wrote that he was concerned about "creating a private right of action for the disclosure of covert identity," and that such lawsuits could "inevitably require judicial intrusion into matters of national security."
Lawyers for Cheney and the other defendants had argued in court filings that the lawsuit would be "inimical" to the ability of the executive branch to protect national security information.
Libby was convicted in March of lying to a grand jury and federal investigators about his role in the CIA leak case, and was sentenced to 30 months in prison. President Bush commuted his prison sentence this month, but left in place a $250,000 fine and two years' supervisory release.
Lawyers for Wilson and Plame said they would appeal the decision.
Melanie Sloan, executive director of Citizens for Responsibility and Ethics, and one of the couple's lawyers, said Bates' decision recognized that the Wilsons' claims posed "important questions relating to the propriety of actions undertaken by our highest government officials."
But, she said, the judge dismissed their lawsuit on a threshold legal issue centered on the difficulty of suing a federal official.
"While we are obviously very disappointed by today's decision, we have always expected that this case would ultimately be decided by a higher court." Sloan said. "We disagree with the court's holding and intend to pursue this case vigorously to protect all Americans from vindictive government officials who abuse their power for their own political ends."
Meet the judge:
John D. Bates was appointed United States District Judge for the U.S. District Court for the District of Columbia by President George W. Bush in December 2001. He graduated from Wesleyan University in 1968 and received a J.D. from the University of Maryland School of Law in 1976. From 1968 to 1971, he served in the United States Army, including a tour in Vietnam. Judge Bates clerked for Judge Roszel C. Thomsen of the United States District Court for the District of Maryland from 1976 to 1977 and was an associate at Steptoe & Johnson from 1977 to 1980. He served as an Assistant United States Attorney for the District of Columbia from 1980 to 1997, and was Chief of the Civil Division of the U.S. Attorney's Office from 1987 to 1997.
Judge Bates was on detail as Deputy Independent Counsel for the Whitewater investigation from 1995 to mid-1997. In 1998, he joined the Washington law firm of Miller & Chevalier, where he was Chair of the Government Contracts/Litigation Department and a member of the Executive Committee. Judge Bates has served on the Advisory Committee for Procedures of the D.C. Circuit and on the Civil Justice Reform Committee for the District Court, and as Treasurer of the D.C. Bar, Chairman of the Publications Committee of the D.C. Bar, and Chairman of the Litigation Section of the Federal Bar Association. He was a member of the Board of Directors of the Washington Lawyers Committee for Civil Rights and Urban Affairs. In 2005, he was appointed by Chief Justice Rehnquist to serve on the U.S. Judicial Conference Committee on Court Administration and Case Management. In February 2006, he was appointed by Chief Justice Roberts to serve as a judge of the United States Foreign Intelligence Surveillance Court. (Ed. Note - The preceding paragraph was copied from his official biography.)
As a District Court Judge, Bates dismissed the GAO's effort to learn with whom Cheney's energy task force conferred.
Judge Bates spent two years working for Kenneth Starr and the Independent Counsel's office during the investigation into President Bill Clinton, specifcially Deputy Independent Counsel under Ken Starr from September 1995 until leaving in March 1997.
Of Bates' appointment to the FISA court, Steven Aftergood at FAS.org reports:
Judge Bates of the D.C. District is the eleventh member of the secretive Court, which processes applications for domestic intelligence search and surveillance under the Foreign Intelligence Surveillance Act of 1978.
He replaces Judge James Robertson who resigned in December 2005 in what was widely viewed as a protest against the President's warrantless surveillance program.
The appointment of Judge Bates to the FISA Court has not previously been reported.
When questioned by Secrecy News earlier this week, Justice Department officials refused to divulge the name of the newest FISA Court judge. The Justice officials suggested filing a Freedom of Information Act request.
But Judge Bates himself disclosed the February 2006 appointment in his online bio at the D.C. District Courthouse (thanks to S).
Judge Bates, a Republican appointee, has a distinctly conservative cast to his resume. From 1995-1997, he served as Deputy Independent Counsel to the intensely partisan Whitewater investigation. In 2002, he dismissed a lawsuit brought by the congressional General Accounting Office seeking disclosure of records of the Vice President's Energy Task Force.
But he has also ruled occasionally in favor of Freedom of Information Act litigants. And in 2004, he rejected the Bush Administration's argument that a U.S. citizen detained abroad under U.S. control cannot invoke habeas corpus.
"The Court concludes that a citizen cannot be so easily separated from his constitutional rights," Judge Bates memorably ruled in Abu Ali v. John Ashcroft.
An FAS roster of FISA Court judges, now including Judge Bates, can be found here.
The story broke about an hour ago, and not one cable news channel has reported this breaking news. Their top (and only) stories today are: "Oprah and Obama"; "Hip Hop - Russell Simmons on poverty in America and the candidates"; "What if John Edwards wins?"; "Bill Clinton comes to Hillary's defense, fires back at Elizabeth Edwards"; "Broken steam pipe clean-up in New York"; "Mayor Bloomberg talks about steam pipe explosion, toxic danger"; "Pentagon says, 'Hillary Clinton is boosting enemy propaganda by asking how the administration plans to win the war in Iraq'"; "US Iraq envoy warns skeptical senators on pullout"; "Body found in nose of United Airlines plan at SFO"; "Bush creates panel to review import safety"; "Harry Potter Threatens Sabbath - Outrage Over Saturday Release"....Everything but this story.
It will take months, if not years, for an appeal to make its way through the courts. Bush and Cheney will be long gone from office should it ever make it to the U.S. Supreme Court. And if it does make it through to the U.S.S.C., can there be any doubt how a Roberts Court would decide?
The same ending is true for all of the Congressional committee hearings: Congress subpoenas testimony and documents, Bush-Cheney stonewall. The only recourse then is the courts, which are either unlikely to get involved (declaring it a political issue, to be worked out between the executive and legislative branches), or overrule Bush's claims of executive privilege, but again, it would take months/years, beyond Bush-Cheney's term in office. Once Bush-Cheney are out of office, a court could dismiss the case(s) on grounds that it's "moot," because Bush-Cheney are no longer in office.
The fix is in. The Bush-Cheney cabal is resting safely knowing that they have covered all of their tracks, and that their backs are covered by their appointed watchdogs.
The Democratically-controlled 110th Congress, just as the Republican-controlled Congresses preceding it, have failed the American people. All roads lead to the same place: The Judiciary --> Legislative --> Judiciary --> Legislative, etc., bouncing back and forth, with neither of these branches willing to save the democracy for the country and the world.
For whatever reason (and obviously there is some other reason than the stock answers we've been given as to why Democrats haven't begun impeachment proceedings) impeachment is a non-starter.
Whereas Nixon went relatively easily, there is nothing remotely approaching easy when it comes to Bush-Cheney; they play for keeps and probably wouldn't vacate even after the Senate reached a verdict to remove them from office. Just as they're resisting all efforts to leave Iraq, Bush-Cheney seem to have gone to great lengths to make sure impeachment won't happen. If I had to guess (and that's all I can do, guess) at what their public moves indicate, some hints loom menacingly in a document that's gotten no media or Congressional reaction: The "National Continuity Policy."
Released by the White House on May 9, 2007, the "National Continuity Policy" announced National Security Presidential Directive 51 (NSPD 51) and the Homeland Security Presidential Directive-20 (HSPD-20). In it, Bush establishes a policy for the continuity of "our form of government" in the event of "a catastrophic emergency" (defined as “any incident, regardless of location, that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the U.S. population, infrastructure, environment, economy, or government function”). Whereas this directive identifies "our form of government" includes "the functioning of three separate branches of government," Bush declares, “The President shall lead the activities of the Federal Government for ensuring constitutional government.”
The legalization of the Unitary Executive, aka 'King George, and his regent, Dick.'
With NSPD 51 and HSPD-20 (and Michael Chertoff's announcement last week of his 'gut feeling' that a terrorist attack on the U.S. is imminent), I think it's fair to assume a repeat of 9/11, should momentum build for (or any investigations, legal actions gain ground that might lead toward) impeachment.
It's either that, or the Democrats in Congress aren't sly enough, smart enough to unravel this knots of the Bush-Cheney conspiracy, are lazy and lack the fortitude, and thus, lack the courage and loyalty to fight for the Constitution.
From Joseph Heller's Catch 22:
"America," he said, "will lose the war. And Italy will win it."
"America is the strongest and most prosperous nation on earth," Nately informed him with lofty fervor and dignity. "And the American fighting man is second to none."
"Exactly," agreed the old man pleasantly, with a hint of taunting amusement. "Italy, on the other hand, is one of the least prosperous nations on earth. And the Italian fighting man is probably second to all. And that's exactly why my country is doing so well in this war while your country is doing so poorly."
"I'm sorry I laughed at you. But Italy was occupied by the Germans and is now being occupied by us. You don't call that doing very well, do you?"
"But of course I do," exclaimed the old man cheerfully. "The Germans are being driven out, and we're still here. In a few years, you will be gone, too, and we will still be here. You see, Italy is really a very poor and weak country, and that's what makes us so strong. Italian soldiers are not dying anymore. But American and German soldiers are. I call that doing extremely well. Yes, I'm quite certain Italy will survive this war and still be in existence long after your own country has been destroyed."
"America is not going to be destroyed!" he shouted passionately.
"Never?" prodded the old man softly.
"Well..." Nately faltered.
"Rome was destroyed, Greece was destroyed, Persia was destroyed, Spain was destroyed. All great countries are destroyed. Why not yours? How much longer do you really think your own country will last? Forever? Keep in mind that the earth itself is destined to be destroyed by the sun in twenty-five million years or so."
"I don't believe anything you tell me," Nately replied... "The only thing I do believe is that America is going to win the war."
"You put so much stock in winning wars. The real trick lies in losing wars, in knowing which wars can be lost. Italy has been losing wars for centuries, and just see how splendidly we've done nonetheless. France wins wars and is in a continual state of crisis. Germany loses and prospers. Look at our recent history. Italy won a war in Ethiopia and promptly stumbled into serious trouble. Victory gave us such insane delusions of grandeur that we helped start a world war we hadn't a chance of winning. But now that we are losing again, everything has taken a turn for the better and we will certainly come out on top again if we succeed in being defeated."
Nately gaped at him in undisguised befuddlement. "Now I really don't understand what you're saying. You talk like a madman."
"But I live like a sane one. I was a fascist when Mussolini was on top, and I am anti-fascist now that he has been deposed. I was fanatically pro-German when the Germans were here to protect us against the Americans, and now that the Americans are here to protect us against the Germans I am fanatically pro-American...When the Germans marched into the city, I danced in the streets like a ballerina and shouted `Heil Hitler!'... When the Germans left the city, I rushed out to welcome the Americans with a bottle of excellent brandy and a basket of flowers. The brandy was for myself, of course, and the flowers were to sprinkle upon our liberators... ".
"There is nothing so absurd about risking your life for your country," [Nately] declared.
"Isn't there?" asked the old man. "What is a country? A country is a piece of land surrounded on all sides by boundaries, usually unnatural. Englishmen are dying for England. Americans are dying for America. Germans are dying for Germany. Russians are dying for Russia. There are now fifty or sixty countries fighting in this war. Sure so many countries can't all be worth dying for."
"Anything worth living for," Nately said, "is worth dying for."
"And anything worth dying for," answered the sacrilegious old man, "is certainly worth living for."
"Why don't you use some sense and try to be more like me? You might live to be a hundred and seven too."
"Because it's better to die on one's feet than live on one's knees. I guess you're heard that saying before."
"Yes I certainly have," mused the treacherous old man, smiling again. "But I'm afraid you have it backward. It is better to live on one's feet than die on one's knees. That is the way the saying goes.
"Are you sure?" Nately asked with sober confusion. "It seems to make more sense my way."
"No, it makes more sense my way..."