The Supreme Court refused to hear a civil lawsuit brought by Valerie Plame. (Photo: Doug Mills / The New York Times)
The US Supreme Court on Monday refused to hear a civil lawsuit filed by Valerie Plame Wilson and her husband, former Ambassador Joseph Wilson, against Bush administration officials who were responsible for leaking her covert CIA status to the media and attacking her husband for accusing the White House of twisting prewar Iraq intelligence.
The Supreme Court's rejection effectively brings the three-year-old case to a close. The Wilson's had sued Dick Cheney, Karl Rove, Cheney's ex-chief of staff I. Lewis "Scooter" Libby, and former Deputy Secretary of State Richard Armitage for violating their civil rights. 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.
"The Wilsons and their counsel are disappointed by the Supreme Court's refusal to hear the case, but more significantly, this is a setback for our democracy," said Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington, an attorney representing the Wilsons. "This decision means that government officials can abuse their power for political purposes without fear of repercussion. Private citizens like the Wilsons, who see their careers destroyed and their lives placed in jeopardy by administration officials seeking to score political points and silence opposition, have no recourse."
US District Court Judge John Bates dismissed the civil lawsuit two years ago. At the time, Bates wrote, as a technical legal matter, Plame and Wilson can't sue under the Constitution. Bates added that the defendants - Cheney, Rove, Libby, and others -had the right to rebut criticism aimed at 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 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. "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."
The Wilsons petitioned the Supreme Court after the Republican-dominated US Court of Appeals for DC Circuit, in a 2 to 1 vote last August, turned down their request for a rehearing. The panel said there was no constitutional precedent established to allow the case to move forward and the court declined to set one.
A federal investigation led by special prosecutor Patrick Fitzgerald later found that numerous White House officials - including Cheney and Libby - had retaliated against and sought to discredit Ambassador Wilson for publicly claiming that the administration had manipulated prewar Iraq intelligence.
Administration officials countered Joseph Wilson's criticism by disclosing to reporters, privately, that Plame 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 testified before Congress last year that she had had no role in selecting her husband for the mission to Niger.
Senior Bush administration officials disclosed Plame's identity to several journalists in June and July of 2003 amid White House efforts to discredit her husband, former US Ambassador Joseph Wilson, for challenging Bush's use of bogus intelligence to justify invading Iraq.
Her CIA employment was revealed in a July 14, 2003, article by right-wing columnist Robert Novak, effectively destroying her career. Two months later, a CIA complaint to the Justice Department sparked a criminal probe into the identity of the leakers.
Initially, Bush professed not to know anything about the matter, and several of his senior aides, including Rove and Libby followed suit.
However, it later became clear that Rove and Libby had a hand in the Plame leak and that Bush and Cheney had helped organize a campaign to disparage Wilson by giving critical information to friendly journalists.
On June 24, 2004, Fitzgerald interviewed Bush for 70 minutes about the Plame leak. The only other member of the Bush team in the room during the meeting was Jim Sharp, the private lawyer that Bush hired, according to a press briefing by then-press secretary Scott McClellan.
"The President ... was pleased to do his part to help the investigation move forward," McClellan said. "No one wants to get to the bottom of this matter more than the President of the United States."
Fitzgerald had interviewed a couple of weeks earlier Cheney.
Last week, Obama's Justice Department argued against the release of the Cheney transcript that CREW sought via a Freedom of Information Act request explaining his role in blowing Plame's cover.
Justice Department attorney Jeffrey Smith told a federal judge that release of the transcript might open Cheney to ridicule from late-night comics and thus could discourage other White House officials from cooperating with government prosecutors.
"If we become a fact-finder for political enemies, they aren't going to cooperate," Smith said during a court hearing last Thursday. "I don't want a future Vice President to say, 'I'm not going to cooperate with you because I don't want to be fodder for The Daily Show.'"
When asked by US District Court Judge Emmet Sullivan whether the Obama administration was standing behind the refusal of George W. Bush's Justice Department to release the transcript, Smith answered, "This has been vetted by the leadership offices. This is a department position."
McClellan says Rove arranged a private meeting with Libby in 2005 when the two men were under mounting suspicion for leaking Plame's identity.
Calling the scene "one moment during the leak episode that I am reluctant to discuss," McClellan writes in his new memoir "in 2005, during a time when attention was focusing on Rove and Libby, [the meeting] sticks vividly in my mind....
"Following [a meeting in chief of staff Andy Card's office], Scooter Libby was walking to the entryway as he prepared to depart when Karl turned to get his attention. 'You have time to visit?' Karl asked. 'Yeah,' replied Libby."
In his book, "What Happened: Inside the Bush White House and the Culture of Washington Deception," McClellan doesn't offer substantive evidence that Rove and Libby used the meeting in 2005 to coordinate their cover stories.
"I have no idea what they discussed, but it seemed suspicious for these two, whom I had never noticed spending any one-on-one time together, to go behind closed doors and visit privately," McClellan writes.
"At least one of them, Rove, it was publicly known at the time, had at best misled me by not sharing relevant information, and credible rumors were spreading that the other, Libby, had done at least as much," McClellan said. "I don't know what they discussed, but what would any knowledgeable person reasonably and logically conclude was the topic?"
For more than a year in three separate appearances before a federal grand jury, Rove had insisted he was not a source for columnist Robert Novak and Time magazine reporter Matthew Cooper, two journalists who were told about Plame's CIA identity when it was still secret.
Rove told the grand jury that he first learned that Plame worked for the CIA when he read it in Novak's column, according to Rove's attorney Robert Luskin. But the truth was Rove had been an unnamed source for both Novak and Cooper.
During closing arguments at Libby's trial, Cheney was implicated in the leak, as Fitzgerald acknowledged that Cheney was intimately involved in the scandal and may have told Libby to leak Plame's status to the media.
Fitzgerald told jurors that his investigation into the true nature of the vice president's involvement was impeded because Libby obstructed justice.
Libby's attorney, Theodore Wells, told jurors during his closing arguments that Fitzgerald had been trying to build a case of conspiracy against the vice president and Libby and that the prosecution believed Libby may have lied to federal investigators and to a grand jury to protect Cheney.
"Now, I think the government, through its questions, really tried to put a cloud over Vice President Cheney," Wells said.
Rebutting Wells, Fitzgerald told jurors, "You know what? [Wells] said something here that we're trying to put a cloud on the vice president. We'll talk straight. There is a cloud over the vice president. He sent Libby off to [meet with New York Times reporter] Judith Miller at the St. Regis Hotel. At that meeting - the two-hour meeting - the defendant talked about the wife [Plame]."
CREW had been hoping that the Obama administration would approach the lawsuit in a different manner.
But last month, the Obama administration's representative before the Supreme Court, Solicitor General Elena Kagan, had also sought the dismissal of the civil suit. Kagan argued that the Wilsons had no legitimate ground to sue and further argued that Ambassador Wilson failed to prove that he was harmed by the attacks he endured from Cheney and others for accusing the Bush administration of twisting prewar Iraq intelligence.
That was not the first time Obama's Justice Department has backed the Bush administration's position on issues related to the CIA leak case.
One day after Obama was sworn in, as he was signing executive orders ushering in what he called a new era of government openness, the Justice Department quietly filed a motion in federal court to dismiss a long-running lawsuit that sought to force the Bush administration to recover as many as 15 million missing White House emails, including some from Cheney's office that special counsel Fitzgerald had subpoenaed in connection with the leak of Plame's identity.
Last Thursday, CREW revealed in newly released documents that the emails from Cheney's office went missing right around the time the Bush White House faced a deadline for turning over the emails to Fitzgerald in accordance with a grand jury subpoena.