All in a Day's Work

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.