When Decorum Becomes Repression

"What can I say about Schultze. He looked like a kid named Yale Newman that everybody picked on in my grammar school because he was always trying to brown-nose the teacher. Thick glasses, slightly uncouth, with pants that always looked like there was a load hanging in the back." – Abbie Hoffman; Soon to Be a Major Motion Picture; page 197

In the chapter titled "A Trial to End All Trials," Abbie Hoffman provided the above quote to describe one of the prosecutors in the historic Chicago Seven case. Older readers will remember an infamous incident from the trial, when Jerry Rubin whispered to Richard Schultze that he was considering peeing on the prosecutor’s foot. Schultze jumped to his feet, and shouted, "Your honor, the defendant Rubin just threatened to doo-doo on my foot!"

In general, I respect most of the men and women who participate in the legal battles that help to define our times, much as the Chicago Seven trial helped to define the 1960s. Judge Reggie Walton is a conservative republican, and has made some rulings in the past that I disagreed with. Yet I was very confident during the early days of the Scooter Libby trial that Judge Walton would be fair, and put the rule of law before any political loyalty he might have felt for the administration.

Likewise, I respect the attorneys who represented the convicted felon Scooter Libby. Going into the trial, it was obvious that they were representing a client who was guilty as sin. During the pre-trial and trial phases of the Libby case, there were some court filings that seemed weak, and I wish they had called Cheney and Rove to the stand. But they recognized their #1 duty was to keep an obviously guilty felon out of prison – and they did.

However, even before yesterday’s Memorandum Opinion by US District Judge John D. Bates, in which he dismissed the Joseph and Valerie Wilson civil suit, I considered Bates to be a Yale Newman-like character. A "Scientists Project on Government Secrecy" article on Bates being appointed to the FISA Court noted that, "Judge Bates, a Republican appointee, has a distinctively 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."

From the day the Wilson’s civil case was filed, it was apparent that it would be a difficult struggle, and that it would ultimately involve a verdict being appealed to and possibly decided by the US Supreme Court. Indeed, this case highlighted the need to have appropriate judges placed in high places. Part of the Wilson team was Erwin Chemerinsky, the law professor at Duke University, who had previously been a US Justice Department attorney, and who had been the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science at the University of Southern California Law School.

On November 3, 2005, Chemerinsky had authored an article "Alito Is Too Far Right for the High Court" for Bloomberg News. In it, he noted that in "virtually every important area, Alito’s opinions are on the far right of the ideological spectrum. …. It is completely appropriate for the Senate to deny Alito confirmation because of his conservative ideology." This was not because Chemerinsky is opposed to conservative voices in the judicial system, but rather because he recognized the damage that individuals who are incapable of placing the rule of law above political ideology cause.

There was concern that John Bates would be unlikely to make any ruling against the administration in the Wilson case. The decision in the VP Cheney Energy Task Force case seemed to reflect Bates’ core beliefs in a powerful executive branch that didn’t need to answer to anyone. Still, there was one instance, in the Abu Ali v. John Ashcroft case, where Bates ruled, "The Court concludes that a citizen cannot be so easily separated from his constitutional rights." One hoped that Bates would recognize the Wilson cases raised important Constitutional issues.

Last July 17, in his first public statement on the civil case, Joseph Wilson told Keith Olbermann, "I think getting the truth out is one of the objectives and we’d like everybody to know precisely what happened ….and why they did this. I think the broader issue, of course, is whether or not individuals who have enormous power in our democracy should be entitled to use that power to exact personal revenge, which of course is what this administration did, from Mr. Cheney on down. ….When you see the vice president annotating a copy of my opinion piece with ‘did his wife send him on a junket,’ that’s essentially a talking point to his staff. So, the uncovering of – the compromise of her identity was clearly deliberate"

Judge Bates noted that, "The merits of plaintiff’s claims pose important questions relating to the propriety of actions undertaken by our highest government officials." But, rather than to consider these questions, Bates writes, "As it turns out, the Court will not reach, and therefore express no views on, the merits of the constitutional and other tort claims asserted by plaintiffs based on defendants’ alleged disclosures because the motions to dismiss will be granted." (pages 1-2)

The load from Yale Newman’s trousers is splattered across the 41 pages of Injustice Bates’ ruling. For example, on page 21, he writes that "Libby learned about Mrs. Wilson’s employment from various sources within the CIA, the State Department, and the Office of the Vice President." That is simple not true: Libby learned of Valerie Plame Wilson’s employment status from one man, VP Dick Cheney.

On page 31, Injustice Bates writes, "The Government has officially acknowledged, in documents filed in the Libby criminal case and at oral arguments in this matter, that Mrs. Wilson was a covert operative for the CIA." Yet in the same paragraph, he states that "in order to prevail on the merits of their equal protection claim, plaintiffs would have to allege and eventually demonstrate ‘disparate treatment of similarly situated parties’. … In other words, plaintiffs would need to introduce evidence pertaining to the Government’s treatment of other covert agents whose espionage relationships have not been acknowledged – evidence that might reveal the identities of those agents."

Bates then expresses concern that hearing the case would "inevitably require judicial intrusion into matters of national security." One suspects that federal laws such as the 1978 Foreign Intelligence Surveillance Act and the 1982 Intelligence Identities Protection Act -- and, indeed, the Libby case -- at very least hint at the need for some cases involving national security issues to be decided in the courts. But John Bates, like Richard Schultze/Yale Newman, is afraid that this runs the risk of exposing the doo-doo on the administration’s trousers and shoes.

He notes the Libby, Rove, and Armitage assert "qualified immunity" and Cheney asserts "absolute immunity" in the operation to damage Joseph Wilson, because he was viewed as an administration critic. He cites the 1988 Westfall Act, which requires "certification by the Attorney General or his designee that the individual defendant was acting within the scope of his office"; one wonders how Bates views Patrick Fitzgerald’s statements about a cloud hanging over VP Cheney as meeting this standard.

Judge Bates is not capable of viewing this case objectively. His sense of reality is summed up in the second of these sentences from page 8: "Now pending before the Court are motions to dismiss filed by each of the four named defendants. The United States has also filed both a Statement of Interest and a motion to dismiss." Bates confuses the Bush-Cheney administration with the United States. In doing so, he reflects the same type of ideological blindness that Chemerinsky had warned against in the Supreme Court. Indeed, it is the same irrational type of thinking that Kevin Phillips warned of in his book American Dynasty: "…(Scalia) opinied that as written in 1787 the Constitution reflected natural or divinely inspired law that the state was an instrument of God. ‘That consensus has been upset,’ he said, ‘by the emergence of democracy.’ He added that ‘the reactions of people of faith to this tendency of democracy to obscure the divine authority behind government should not be resignation to it but resolution to combat it as effectively as possible’." (pages 107-108)

Judge Bates’ ruling is clearly a resolution to combat the dangerous democratic actions of Joseph and Valerie Wilson, and to protect the divine power of George Bush and Dick Cheney. The Wilsons will appeal his decision, and it is possible that they will still have their day in court.

Yet, as Abbie Hoffman said upon being sentenced for contempt in the Chicago Seven trial, "When decorum becomes repression, the only dignity free men have is to speak out." I urge both Joseph and Valerie to speak out. I believe that the real United States is depending on true patriots to do just that today.