Plane-Wilson lawsuit against Cheney, Libby, Rove & Armitage

Missing Rove Emails Point to Violation of Records Act
Missing Rove Emails Point to Violation of Records Act
By Jason Leopold and Matt Renner
t r u t h o u t | Report
Monday 21 May 2007

Three years ago, Robert Luskin, the attorney who defended White House Political Adviser Karl Rove in the CIA leak case, made a startling discovery: a July 2003 email Rove sent to then-Deputy National Security Adviser Stephen Hadley proved Rove was far more involved in the leak of covert CIA operative Valerie Plame-Wilson, and the campaign to discredit her husband, former Ambassador Joseph Wilson, than he had let on during interviews with federal investigators and in testimony before a federal grand jury.

Curiously, the email Rove sent to Hadley which Luskin had found never turned up during an exhaustive document search ordered a year earlier, in September 2003, by Alberto Gonzales. At the time, Gonzales, who was White House counsel, enjoined all White House staff members to turn over any communications pertaining to Plame-Wilson and her husband, a vocal critic of the Iraq war, who had accused the Bush administration of twisting pre-war Iraq intelligence. Gonzales's order to turn over documents and emails came 12 hours after former White House Chief of Staff Andrew Card had informed him that the Justice Department was launching an investigation into the leak.

The order Gonzales sent to Karl Rove and other administration officials demanded "documents that related in any way to a contact with any member or representative of the news media about Joseph C. Wilson, his trip to Niger in February 2002, or his wife's purported relationship with the Central Intelligence Agency."

The Rove/Hadley email was not included in the thousands of pages of documents turned over to the FBI. The reason? Apparently the "right search words weren't used," Luskin told Newsweek in October 2005. The email Rove sent to Hadley in July 2003 has never been released publicly. It's unclear whether the email was sent via the White House computer system or from Rove's email account maintained by the Republican National Committee (RNC), which, according to the National Journal, is what Rove uses to conduct 90 percent of his White House business, in what would appear to be a violation of the Presidential Records Act.

Deja Vu All Over Again

The narrative about the single email that tied Rove to the Plame-Wilson leak that was lost and then found is a complex one. But the story has deja vu written all over it, as Rove finds himself smack in the middle of the latest high-profile scandal plaguing the White House - the apparent politically motivated firing of nine US attorneys last year. Once again, lawmakers are doing their darnedest to obtain copies of Rove's emails, linking him directly to the US attorney scandal, and once again serious questions are being raised about the lengths to which Gonzales, as head of the Justice Department, and the Bush administration are willing to go to insulate Rove.

In April, the RNC disclosed that thousands of emails Rove had sent over a four-year period via his RNC email account might have been destroyed. The nonprofit government watchdog group Citizens for Responsibility and Ethics in Washington (CREW) revealed in April, however, that its own probe had discovered that as many as five million White House emails were missing, in violation of the Presidential Records Act.

Last week, the Justice Department released a single email which was sent to Rove and several DOJ and Bush administration officials at an account maintained by the Republican National Committee - [email protected]., in response to a wide-ranging subpoena issued by the Senate Judiciary Committee. The committee had demanded all of Rove's emails, including those emails sent and received during the height of the Plame-Wilson leak, which Rove's attorney had surrendered to Special Prosecutor Patrick Fitzgerald. The email was hardly a smoking gun. It simply showed that Rove was kept in the loop about the news surrounding the issue.

Using search terms such as "Rove, Karl, kr, gwb43.com, georgewbush and rnchq.org," the Justice Department could only find a February 28, 2007 email that J. Scott Jennings, a special adviser to President Bush who works in Rove's shop, had cc'd Rove. And as for emails, the Judiciary Committee requested that Rove sent or received during the Plame-Wilson leak, and thereafter that were allegedly turned over to Fitzgerald?

"The Office of Special Counsel Fitzgerald also conducted a search using the same search terms referenced above, and we have been advised that this effort did not identify any responsive documents," said the Justice Department letter to Senate Judiciary Committee Chairman Patrick Leahy. "Mr. Fitzgerald noted that his office did not obtain all of Mr. Rove's emails, but rather obtained access to his electronic media for the purpose of searching for documents responsive to search terms relevant to his investigation. Only records responsive to Mr. Fitzgerald's investigative search terms were retained by his office...."

If that's the case, then it certainly calls into question the integrity of Fitzgerald's investigation as it pertains to Rove.

Melanie Sloan, the executive director of CREW, said in an interview with Truthout last month that, "It looks like Karl Rove may well have destroyed evidence that implicated him in the White House's orchestrated efforts to leak Valerie Plame-Wilson's covert identity to the press in retaliation against her husband, former Ambassador Joseph Wilson." Sloan also said, "Special Counsel Fitzgerald should immediately reopen his investigation into whether Rove took part in the leak, as well as whether he obstructed justice in the ensuing leak investigation."

The prospect of a new investigation into Rove appears to be unlikely.

Still, if history does indeed repeat itself, it is likely the evidence of Rove's complicity in the US attorney scandal is lurking on a hard drive somewhere.

The Case of the Sudden Reappearance of the Lost Email Rove Sent to Hadley

Immediately after Luskin revealed that he had told Fitzgerald his client had in fact discussed Plame-Wilson and her husband with Time magazine reporter Matthew Cooper, suspicions about the timing of the discovery of the email Rove had sent to Hadley surfaced. This was contrary to both Rove's sworn testimony before a grand jury and what he had told the FBI in an interview.

Rove had been a source for a story Cooper wrote about the covert CIA operative and the former ambassador. Rove failed to disclose that crucial piece of information to the FBI in October 2003, a mere three months after he spoke to Cooper. He said the conversation had escaped his memory. However, Rove and his attorney were reminded about the White House political adviser's conversation with Cooper thanks to a chance meeting Luskin had with Cooper's colleague, Viveca Novak, sometime in 2004. She told Luskin it was well known within Time magazine that Rove had been a source for Cooper.

That tidbit of information supplied by Novak led Luskin and Rove to search Rove's files. What turned up was the email Rove had sent to Hadley, which for unknown reasons had not surfaced a year earlier. This led Rove to change his testimony. Rove's memory just happened to have been refreshed right around the same time it had become clear that Cooper would lose his legal battle and would be forced to respond to a subpoena demanding that he reveal the identity of his source, who happened to be Karl Rove.

Did Rove Deliberately Conceal Evidence Tying Him to the CIA Leak?

Up until this point, the leak investigation had primarily been centered on an obscure law that made it a felony for any government official to knowingly disclose the identity of an undercover CIA officer.

But around the time Luskin said he located the email Rove had sent to Hadley, Fitzgerald had already become suspicious that Rove was obstructing his investigation and might have destroyed evidence implicating him in the leak. In late January 2004, Fitzgerald sent a letter to then-acting Attorney General James Comey seeking confirmation that he had the authority to investigate and prosecute suspects in the leak case for additional crimes, including evidence destruction.

Comey responded to Fitzgerald in writing on February 6, 2004, confirming that Fitzgerald did indeed have the authority to prosecute additional crimes, including "perjury, obstruction of justice, destruction of evidence and intimidation of witnesses."

Miers Informs Fitzgerald About the White House's Lost Emails

The same month Luskin spoke with a reporter for Newsweek, White House Counsel Harriet Miers, who succeeded Gonzales, told Special Prosecutor Patrick Fitzgerald that some White House emails were not archived in accordance with the Presidential Records Act, according to CREW.

The White House's Office of Administration briefed Miers about the extent of their email issues. Miers is said to have immediately informed Fitzgerald about it due to Fitzgerald's having subpoenaed White House emails sent in 2003. However, according to CREW, Fitzgerald's staff was briefed before a complete audit of the email records could be taken.

Three months later, as was first reported in a story by Truthout last year, Fitzgerald had filed a court document in January 2006 in US District Court in Washington, DC. The document revealed that his investigative team had "learned that not all email of the Office of the Vice President and the Executive Office of the President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system." That document was filed during the discovery phase of the perjury and obstruction-of-justice trial against former vice presidential staffer I. Lewis "Scooter" Libby.

White House "Discovers" 250 Pages of Emails Related to CIA Leak

Less than two weeks later, the White House turned over 250 pages of emails from President Bush and Vice President Dick Cheney's offices to investigators working for the special prosecutor - more than two years after the investigation had begun. It's unknown what was contained in those emails. But Truthout reported at the time that additional emails were withheld from Fitzgerald's probe by Gonzales, who, as White House counsel, had cited executive privilege as the reason he would not turn over the communications.

The White House offered no official explanation concerning the circumstances regarding the sudden reappearance of the emails it had turned over to Fitzgerald on February 6, 2006, or if there had been any truth to Fitzgerald's allegations that the emails had not been automatically archived. At the time, a White House spokeswoman would only say that staffers had "discovered" the batch of documents during a search.

Sloan, the CREW director, said her organization had no direct evidence proving that Rove had intentionally withheld emails from Fitzgerald's probe. But the CREW attorneys doubted that that Rove and the White House had been forthcoming about Rove's involvement in the leak of Plame-Wilson's covert identity in light of the fact that thousands of emails Rove had sent and received during the height of the leak probe had not been recovered. Moreover, Sloan said it was difficult to determine whether Rove's attorney, Robert Luskin, had been forthcoming with Fitzgerald about the changing stories that Rove and Luskin had told the special prosecutor regarding Rove's role in the Plame-Wilson leak and the discovery of the email Rove had sent to Hadley.

"He is a well known lawyer and I would give him the benefit of the doubt, but there is no way to know if he was telling the truth or not at this point," Sloan said.

Although the DOJ said it could only locate one email "to, from or copied to Karl Rove" since November 2004, related to the investigation into the US attorney firings, the Justice Department was "continuing to search for documents."
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Matt Renner is a reporter for Truthout.

Unclassified Document: Plame Was Indeed 'Covert' at CIA
Unclassified Document: Plame Was Indeed 'Covert' at CIA
By E&P Staff
Published: May 29, 2007

A declassified summary of Valerie Plame's employment history at the CIA disclosed for the first time today in a court filing that Plame was indeed "covert" when her name became public in July 2003, via columnist Robert Novak.

The summary was part of an attachment to prosecutor Patrick Fitzgerald's recommendation that I. Lewis "Scooter" Libby spend up to three years in prison for obstructing the CIA leak investigation.

The summary states, "Ms. Wilson was a covert CIA employee for who the CIA was taking affirmative measures to conceal her intelligence relationship to the United States."

Plame worked as an operations officer in the Directorate of Operations and was assigned to the Counterproliferation Division (CPD) in January 2002 at CIA headquarters in Langley, Virginia.

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This could get interesting.

Plame Sues CIA for Blocking Her Memoir
Plame Sues CIA for Blocking Her Memoir
By Adam Liptak
The New York Times
Friday 01 June 2007

Valerie Wilson, the former intelligence operative at the heart of an investigation that reached into the White House, sued the Central Intelligence Agency in federal court in New York yesterday over its refusal to allow her to publish a memoir that would discuss how long she had worked for the agency.

Although that information is set out in an unclassified letter to Ms. Wilson that has been published in the Congressional Record, the C.I.A. contends that her dates of service remain classified and may not be mentioned in "Fair Game," the memoir Ms. Wilson hopes to publish in October.

C.I.A. employees sign agreements requiring them to submit manuscripts to the agency for permission before they are published, and Ms. Wilson's suit said she spent 10 months working with agency officials on the book to avoid disclosing national security information. But the agency's refusal to allow her to include material already in the public domain, the suit said, violates her right to free speech.

"The C.I.A.'s effort to classify public domain information is an unreasonable attempt at prior restraint of publication and a violation of our First Amendment rights," said Adam Rothberg, a spokesman for Simon & Schuster, which plans to publish the book and is also a plaintiff in the suit.

First Amendment challenges to decisions by the C.I.A concerning its former employees' proposed books and articles have not met with much success in the courts, which tend to focus on the terms of the employment agreements and to defer to the agency's judgments about what information should be withheld from the public. But Ms. Wilson's suit, which is narrowly focused on information already published in the Congressional Record, presents the more difficult question of when information that was once secret has entered the public record.

The C.I.A. acknowledged that the dates of Ms. Wilson's employment had mistakenly been disclosed, although a spokesman said that did not mean the information was no longer classified.

"Frankly," said the spokesman, Mark Mansfield, the release of the information in 2006, in response to a query from Ms. Wilson about retirement benefits, was "an honest-to-goodness administrative error."

"The letter contained classified information and should not have been mailed to her," Mr. Mansfield said, referring to Ms. Wilson. "As soon as it was discovered, we took steps to rectify the error, including notifying the clerk of the House of Representatives."

The letter, from February 2006, was entered into the Congressional Record by Representative Jay Inslee, Democrat of Washington, in January 2007. Mr. Inslee was introducing legislation to allow Ms. Wilson to qualify for a government annuity.

The letter said that Ms. Wilson had worked for the government since Nov. 9, 1985, for a total of "20 years, 7 days," including "six years, one month and 29 days of overseas service."

Christine Hanson, a spokeswoman for Mr. Inslee, said the congressman had assured himself that the document was not classified before disclosing it.

"It's very much part of the public domain," Ms. Hanson said. "If they're upset about it, they should have made that determination before they gave the letter to her. They're trying to get the cat back into the bag."

Since the publication of the letter in the Congressional Record, the C.I.A. has repeatedly demanded that Ms. Wilson return all copies of it.

The agency receives about 100 submissions a month from former employees and others who have had access to classified information, Mr. Mansfield said, ranging from short opinion articles to lengthy books. "The sole yardstick for prepublication review," he said, "has been and remains that their writings contain no classified information."

The C.I.A. has been adamant in refusing to confirm the dates or details of Ms. Wilson's service before 2002. In July 2003, the syndicated columnist Robert Novak disclosed her identity as "an agency operative on weapons of mass destruction." Mr. Novak referred to Ms. Wilson by her maiden name, Valerie Plame.

The investigation into that disclosure led to the conviction of I. Lewis Libby Jr., formerly Vice President Dick Cheney's chief of staff, on perjury and obstruction of justice charges in March.

On Friday, the special prosecutor in the case, Patrick J. Fitzgerald, submitted an unclassified summary of Ms. Wilson's "C.I.A. employment and cover history" to the judge who will sentence Mr. Libby.

It was limited to the four years starting in 2002. In the summary, the agency said it chose to make information about Ms. Wilson's service public to aid Mr. Fitzgerald, but it did not say why it selected 2002 as its cutoff. A trip undertaken for the C.I.A. in February 2002 by Joseph C. Wilson IV, a former diplomat and Ms. Wilson's husband, has been the subject of intense scrutiny.

The summary said that Ms. Wilson was a covert C.I.A. employee at the time of Mr. Novak's disclosure. Between the beginning of 2002 and Ms. Wilson's resignation from the agency at the end of 2005, the summary said, she traveled overseas "under a cover identity, sometimes in true name and sometimes in alias" at least "seven times to more than 10 countries."

The summary said that the C.I.A. did not acknowledge "any other period of employment, if any, nor does it declassify the nature and details of Ms. Wilson's cover."

Through a spokesman, Ms. Wilson declined to comment.

Asked if the dispute over the dates of Ms. Wilson's tenure were the key to allowing the book to be published, an intelligence official responded obliquely.

"Official acknowledgment of certain matters could cause some on whom we rely to think that we do not take protecting sensitive equity seriously or cause them to think twice about assisting us in the future, and that could have serious ramifications," the official said.

In an April 19 letter, the lawsuit said, the agency said that "with limited exceptions" the classified information to which the agency objects "relates to a single issue," although it did not specify the issue.

Mr. Rothberg, of Simon & Schuster, said the dates of Ms. Wilson's service were "just one item in the publication review process, but it's one we feel strongly about." The publisher is said to have paid about $2 million for the book, a figure Mr. Rothberg would not confirm.

An Interview With Joseph Wilson
An Interview With Joseph Wilson
By Jason Leopold
t r u t h o u t | Report
Monday 04 June 2007

In a recent interview, former US Ambassador Joseph Wilson told me that he and his wife, Valerie Plame Wilson, both strongly feel that Vice President Dick Cheney is behind efforts to block her from discussing her work for the Central Intelligence Agency before 2002 in a memoir to be published in October. The memoir is titled "Fair Game." Plame Wilson's undercover CIA identity was leaked to a handful of reporters by senior Bush administration officials. She and her husband believe the leak was retaliation after he spoke out against the White House concerning Iraq.

In July 2003, Wilson wrote an op-ed article in the New York Times, accusing the Bush administration of twisting prewar Iraq intelligence in an effort to win public support for a US-led invasion of that country.

Upon reviewing her manuscript, the CIA told Plame Wilson she cannot disclose that she worked for the agency prior to 2002 - even though it is public information and has been entered into the Congressional Record. Last week, Plame Wilson and her publisher, Simon & Schuster, sued the CIA in US District Court in New York for unconstitutionally interfering with her rights to free speech.

"This is Richard Cheney's last attempt to try to stifle free speech in this country, and we'll beat the son of a bitch on that too, if we have to," Wilson told me in a 30-minute interview at his office in Santa Fe, New Mexico. "We will find the work-around to make sure this happens - that she will be able to tell her story, so that somebody other than Dick Cheney, Scooter Libby, Rich Armitage and Karl Rove can talk about her."

Wilson and his wife have filed a civil suit against top administration officials - among them Vice President Dick Cheney, White House Political Adviser Karl Rove and Cheney's former Chief of Staff I. Lewis "Scooter" Libby, for allegedly violating his and Plame Wilson's civil rights when they disclosed her covert CIA status to the media. The defendants have argued that the lawsuit should be dismissed on grounds that it was a "policy dispute." However, Wilson told me he believed that the judge presiding over the case felt the case had merit and took issue with assertions made by Cheney's attorneys that Cheney, in his capacity as vice president, was entitled to absolute immunity from lawsuits.

"I think we came away feeling that the judge clearly saw that a wrong had been committed," Wilson told me. The judge is expected to render a decision in less than a month on whether the civil suit can move forward. "The judge was skeptical of this notion of absolute immunity. He made the point, I think repeatedly, that absolute immunity was a unique feature of the Office of the President, and not necessarily of the Office of the Vice President."

Libby was convicted earlier this year of four counts of perjury, obstruction of justice and lying to a grand jury about how he discovered that Plame Wilson was a CIA employee, and whether he discussed her role at the agency with the media. He is scheduled to be sentenced Tuesday.

Wilson's stinging rebuke of the administration's reliance on what later turned out to be a set of forged documents angered senior Bush administration officials. The documents purportedly revealed that Iraq was attempting to obtain uranium from Niger to build an atomic bomb. Wilson had traveled to the African country of Niger in February 2002 on behalf of the CIA to investigate the allegations. He returned to the US and told a CIA briefer that the claims were unfounded. President Bush cited the claims as fact in his January 2003 State of the Union speech.

A federal investigation led by Special Prosecutor Patrick Fitzgerald later found that numerous White Officials had retaliated against and sought to discredit Joseph Wilson for publicly claiming that the administration had manipulated Iraq intelligence by telling a handful of elite Washington, DC reporters that Wilson's investigation into the Niger claims could not be trusted. The administration told the reporters that Valerie Plame Wilson worked at the CIA and had arranged to send her husband to Niger. The officials suggested that the trip was the result of nepotism. Plame Wilson testified before Congress this year that she had had no role in selecting her husband for the mission.
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Jason Leopold is a former Los Angeles bureau chief for Dow Jones Newswire. He has written over 2,000 stories on the California energy crisis and received the Dow Jones Journalist of the Year Award in 2001 for his coverage on the issue as well as a Project Censored award in 2004. Leopold also reported extensively on Enron's downfall and was the first journalist to land an interview with former Enron president Jeffrey Skilling following Enron's bankruptcy filing in December 2001. Leopold has appeared on CNBC and National Public Radio as an expert on energy policy and has also been the keynote speaker at more than two dozen energy industry conferences around the country.

Joe Wilson's War:
http://writ.news.findlaw.com/dean/20070724.html

Joe Wilson's War:
By JOHN W. DEAN
Tuesday, Jul. 24, 2007

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

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

"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. "
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This is depressing