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FindLaw's Writ - Dean: Joe Wilson's War

Joe Wilson's War:
Though He and His Wife Valerie Plame Lost Their Lawsuit against Cheney and Others, It's Only One Battle in a Fight that Flushed Out Much Truth

By JOHN W. DEAN
Tuesday, Jul. 24, 2007

Former ambassador Joseph Wilson and his wife, Valerie Plame Wilson, lost their lawsuit seeking to hold a number of defendants responsible for the personal damage they caused when they revealed her CIA covert status, but they won the battle to get to the truth. Joe Wilson has exposed much more than the bogus claim underlying the efforts to justify an invasion of Iraq. In the larger picture, the ruling dismissing their lawsuit is of little long-term historical significance, compared to the information the Wilsons have forced to the surface. It is only unfortunate that the Wilsons had to pay dearly in order to speak the truth.

Dismissal of the Wilsons' lawsuit, in fact, illuminates yet another oft-forgotten truth: Officials like Vice President Cheney, his former top aide Scooter Libby, White House political adviser Karl Rove, and former State Department official Richard Armitage can easily escape civil legal liability for even highly irresponsible conduct. U.S. District Court Judge John Bates's ruling reminds us that the federal judiciary today, under the dictates of a conservative Supreme Court majority, has a remarkable array of technical rules it can invoke to prevent anyone from holding high-level federal officials civilly responsible for irresponsible or illegal behavior.

Although the Wilsons plan to appeal Judge Bates's decision, it was based on a phalanx of prior holdings denying such relief against high level officials, so do not hold your breath anticipating a higher court reversal. Instead, it seems an appropriate time to tally a few high points of the impact of Joe Wilson's actions. It is easy to forget that his actions were the catalyst to the public's learning how this very secretive White House truly operates, and coming to understand the inadequacy of the law protecting covert agents (even from their own government playing politics), and the propensity of conservatives to play dirty and get away with it.

A half-dozen or so examples of the revelations the scandal prompted make the point:

The Revelation of Bush's Concocted Justification for the Iraq Invasion

Joe Wilson's July 6, 2003 OpEd piece in the New York Times -- "What I Didn't Learn In Africa" -- put the lie to a crucial Bush/Cheney Administration claim that Bush had put forward in his 2003 State of the Union address justifying his war in Iraq -- namely, that Saddam had been importing a key ingredient in making atomic weapons, uranium, from Niger. Wilson, who traveled to Niger at the request of the CIA, determined the contention was a false statement. Eventually, the Administration was forced to admit that Bush's statement was wrong.

The Revelations Concerning Bush Administration Incompetence

Claiming that Iraq was importing uranium from Africa was not a small mistake. The president has a National Security Council (NSC), which is plugged into the CIA and State Department, to avoid making such mistakes, particularly when they involve life-and death decisions associated with war. After Ambassador Wilson revealed that his investigation showed that, in fact, no uranium had been sent from Niger to Iraq, it was disclosed that the CIA and State Department had both warned the White House that the assertion to the contrary would be wrong. Incompetence, if not duplicity, explains how the NSC, White House speechwriters, and the President's personal staff allowed him to make this false statement.

The Evidence that Conservatives Fight Dirty and Dishonestly

Soon after Ambassador Wilson published his OpEd disproving the President's assertion, the White House commenced a full-scale attack on Wilson, although they had been working on discrediting him since as early as March, when he raised the question on CNN. Because they could not discredit his message, which was unimpeachable, they did what conservatives always do -- attack the messenger. This was accomplished by doing something else conservatives have made standard practice: attacking Wilson's wife, Valerie Plame Wilson, who was a covert CIA agent working in the field of weapons of mass destruction. Falsely, they claimed that Valerie Plame Wilson had arranged for her husband to make this trip to Niger or that, as suggested by Dick Cheney, she had sent him on a boondoggle. Even after the CIA made clear that Valerie Wilson in fact did not make the decision to send her husband to Niger, the White House and its apologists like Senator Orrin Hatch still insisted on continuing to falsely accuse her. Her career at the CIA was effectively ended by these partisans attacking her husband; she became collateral damage.

The Evidence that The Intelligence Identities Protection Act Is Deeply Flawed

The CIA sought to protect Valerie Wilson's status as a covert agent by referring her case to the Justice Department on July 30, 2003, under the Intelligence Agents Identities Act. Clearly, the CIA believed that she qualified as a "covert agent" under the criminal provisions of the Intelligence Identities Protection Act of 1982 (IIPA). This meant that the CIA was still actively trying to keep her true identity secret at the time Cheney and others were making it public, and that she had undertaken a covert operation within the preceding five years. The Department of Justice instituted a formal investigation, indicating that they too believed the IIPA had been violated. Notwithstanding calls for an independent Special Counsel, Bush's Attorney General John Ashcroft at first insisted upon remaining the titular head of the investigation. But on December 30, 2003, Ashcroft recused himself, and the next day, Deputy Attorney General James Comey selected Patrick Fitzgerald as Special Counsel. Thus, six months into the investigation, the Department of Justice, like the CIA, must have believed there was a violation of the IIPA. Special Counsel Fitzgerald conducted a narrow investigation under this law for several years, for he too found the law potentially applicable. But the Special Counsel was ultimately unable to develop a criminal case against those who willfully revealed Valerie Plame's covert status. Clearly, this is a law that needs remedial amendment to correct its flaws.

Appointing A Special Counsel To Investigate Was the Result of A Fluke

It remains unknown why Ashcroft recused himself. This much is clear, however: Comey was a straight-shooter when serving as Deputy Attorney General, and Ashcroft appears to have greatly respected his judgment. In addition, we know now that some seventy days after Ashcroft recused himself, White House counsel Alberto Gonzales traveled (with White House chief of staff Andrew Card) to the hospital to get a semi-conscious Ashcroft, barely out of emergency surgery, to overturn Comey's refusal to sign off on the illegal surveillance of millions of Americans, contrary to the Foreign Intelligence Surveillance Act. The White House only backed down from this push when it was learned that the entire senior management staff of the Justice Department - that is, all of Bush's political appointees - were universally ready to resign if the White House insisted on going forward. This threat of a mass resignation could not have been prompted by a single event; rather, this must have been a reaction to many such events. So it is not a great leap to think that Ashcroft likely recused himself from the Plame investigation because it was one of many efforts by the White House to politically strong-arm the Justice Department. It was a fluke, however. And it shows the need for a more standardized procedure for the selection of special counsel - something between the disasters created by the Independent Counsel Act (which has expired) and the current situation (which is clearly less than adequate).

The Revelations Regarding Dick Cheney's Dominant Role in Foreign Policy

Special Counsel Patrick Fitzgerald operated as the exact opposite of former judge and later Independent Counsel Ken Starr, who had investigated Bill Clinton endlessly and broadly. Yet as limited and narrow as Fitzgerald's inquiry and subsequent indictment of Scooter Libby were, the evidence he used to try Libby still provided considerable hard information confirming the remarkable role that Vice President Dick Cheney plays in the operations of the Bush White House. Throughout Libby's trial (for false statements to the FBI, perjury before the grand jury, and obstruction of justice relating to the White House efforts to "out" Valerie Plame Wilson as part of the attack on Joe Wilson), Cheney was the looming presence - or absence, when he failed to show up to testify. Details of his dominant authority in making foreign policy surfaced, and Fitzgerald all but announced that Libby's lies had blocked his investigation of Cheney - who may well have violated the Intelligence Identities Protection Act due to his own actions and statements regarding Valerie Plame Wilson.

Indications that Conservative Hypocrisy Remains High

Republicans like to boast of their hard-nosed, no-nonsense beliefs about law and order. Their motto is, "Do the crime, do the time." However, President Bush's commutation of Libby's sentence of 30 months in jail again has showed how authoritarian conservatives want the world to "Do as we say, not as we do." Remarkably, all the leading GOP candidates vying for their party's nomination clamored to see who could best display his hypocrisy by calling for Libby's pardon, notwithstanding the seriousness of Libby's offenses. Conservatives easily ignored the fact that today's brutal federal sentencing structure, under which Libby was sentenced and was being dispatched to prison, exists only because conservatives have demanded this very structure. But in the end, I do not believe it was their clamor that resulted in Bush's commuting Libby's jail time to zero, while leaving in place his $250,000 fine and probation. Rather, it was pure self-protection. Bush, too, was overwhelmingly likely to have been involved in the attacks on Joe Wilson - including authorizing Libby to leak classified information. Thus, Bush could not risk Libby's thinking that his friends had deserted him, for Bush surely knew that Libby could sink not only Cheney, but Bush himself as well. Does anyone seriously believe that Bush will not pardon Libby, on his way out of office in January 2008, in order to complete this GOP hypocrisy? Does anyone really doubt that this is one of the most successful coverups any White House has ever pulled off?

I'll resist, for now, the temptation to Monday-morning-quarterback the case filed by the Wilsons. Suffice it to say that a narrow action against one or more of the reporters involved in carrying water for Cheney, Libby, Rove, and the White House attack machine might have had a stronger potential of getting past the motion-to-dismiss stage of the lawsuit, which would have enable the Wilsons to undertake discovery - although such discovery, too, would have been confronted with claims of executive privilege. All the roads the Wilsons might have taken were extremely difficult.

More to the point, and much more importantly, is the service the Wilsons have provided to us all by exposing the truths I have set forth above, not to mention many other truths as well. We all owe them a debt of gratitude for a public service that was far beyond any call of duty, and I look forward to Valerie Wilson's book regarding their ordeal - if Bush and Cheney do not block that as well.


John W. Dean, a FindLaw columnist, is a former counsel to the president.

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