Stacking the Deck to Save the Administration
How a "random" judicial appointment may decide the Libby trial in advance
by Christopher Deliso
balkanalysis.com
http://www.antiwar.com/deliso/?articleid=8340
The Bush administration – and the nation – has a lot at stake in the upcoming trial of former Cheney aide I. Lewis Libby over the leaking of CIA agent Valerie Plame's identity to the media. And if prosecutor Patrick Fitzgerald decides to indict others (especially top Bush aide Karl Rove, as some expect), the stakes will get even higher.
If the trial gets messy for the administration, the president will be forced at least to reconfigure his government and suffer the fickle wrath of a duplicitous mass media. But things could get much worse, if convictions are handed down. At best (for the neocon-led government, anyway), the whole thing could just get smothered under a heavy blanket of "state secret" luxuries granted to the defense. Given the track record of the case's presiding judge, this is a distinct possibility.
The key issue arising out of not only Plamegate but so much else involving the current administration has been secrecy. Secret wiretapping and other secret requests put to the judiciary since 9/11 have doubled and have been handled in widely differing ways, even by the same judges, as have other cases in which secrecy has been cited. Examining some of these cases indicates how difficult and tortuous the issues are that the judiciary is being presented with by the most vigorously secretive American administration in history.
At the same time, we will also see how these precedents may inform the upcoming Libby trial, with special attention given to the trial's appointed judge – Reggie Walton, allegedly selected "randomly," but repeatedly and specifically chosen for cases presented by FBI whistleblower Sibel Edmonds since 2002. In his 2004 decision, Walton ruled "with much consternation" to uphold the government's line that Edmonds could not present her case because it would threaten national security.
Although Edmonds' appeal to the Supreme Court was rejected, she has tenaciously refused to give up, launching a new suit. And guess who's been appointed the judge? You guessed it! Reggie Walton. According to Edmonds, as we will see below, this is a suspicious and disastrous development that does not bode well for an impartial and fair Libby trial.
The Secrecy Specialists
While it would be premature to argue for an orchestrated campaign of judge placement by the government, "it does seems that a disproportionate number of high profile cases and cases concerning secrecy go to a few [of the Washington, D.C.] judges," notes Professor William Weaver, an expert on government secrecy and legal matters with the National Security Whistleblowers Coalition. Along with Walton, notes Professor Weaver, these judges are Ricardo Urbina, Royce C. Lamberth, and Kathleen Kollar-Kotelly.
The latter two have enjoyed extraordinary powers of arbitration in one of the government's prehistoric (that is, pre-9/11) secret courts, the Foreign Intelligence Surveillance Court [.pdf]. In May 1995, Judge Lamberth was appointed to the seven-year term as presiding judge of the FISC by Supreme Court Chief Justice Rehnquist. In May 2002, Rehnquist again appointed another D.C. circuit judge, Kathleen Kollar-Kotelly, in his place.
The FISC was created to administer the 1978 Foreign Intelligence Surveillance Act, which "prescribes procedures for the physical and electronic surveillance and collection of 'foreign intelligence information' between or among 'foreign powers.'" With 9/11, the court entered an era of new challenges, heightened requests, and tensions that have boiled over very recently, resulting in the protest resignation of one of its judges.
Indeed, unlike other institutions, the secret court has not turned out to have been a pushover or enabler of PATRIOT Act-era governmental indiscretions since 9/11. The Washington Post reported back on Aug. 23, 2002, that the FISC "refused to give the Justice Department broad new powers, saying the government had misused the law and misled the court dozens of times, according to an extraordinary legal ruling released yesterday."
According to the court's May 17 opinion, "Justice Department and FBI officials supplied erroneous information to the court in more than 75 applications for search warrants and wiretaps, including one signed by then-FBI Director Louis J. Freeh. Authorities also improperly shared intelligence information with agents and prosecutors handling criminal cases in New York on at least four occasions, the judges said." The ruling added that the government's request "would have given prosecutors too much control over counterintelligence investigations and would have effectively allowed the government to misuse intelligence information for criminal cases, according to the ruling."
Much more recently, on Dec. 21, 2005, the Washington Post again reported that Judge James Robertson has quit over the recent warrantless wiretapping furor now plaguing the administration, because "the program authorized by the president in 2001 was legally questionable and may have tainted the FISA court's work." The article adds:
"[R]obertson indicated privately to colleagues in recent conversations that he was concerned that information gained from warrantless NSA surveillance could have then been used to obtain FISA warrants. FISA court Presiding Judge Colleen Kollar-Kotelly, who had been briefed on the spying program by the administration, raised the same concern in 2004 and insisted that the Justice Department certify in writing that it was not occurring.
"'They just don't know if the product of wiretaps were used for FISA warrants – to kind of cleanse the information,' said one source, who spoke on the condition of anonymity because of the classified nature of the FISA warrants. 'What I've heard some of the judges say is they feel they've participated in a Potemkin court.'"
There has thus been some resistance within the institutional framework to the current administration's excesses of secrecy and abuse of powers. Of course, the government has now launched an interesting sort of counteroffensive.
Procedure for "Random" Appointments
It does sometimes seem that the chances of a certain judge being "randomly" appointed to cases as important as Libby's and Edmonds' second one [.pdf] are just slightly worse than winning, say, the Greek lottery. However, there are other limiting factors at work that reduce the pool and that sometimes introduce a factor of singular manipulation into the appointment process.
According to legal expert Weaver, "assignment of judges is made in accordance with local rules [i.e., here the D.C. federal district court rules]. Each jurisdiction handles assignments a bit differently, and the only concerns with assignments generally are that they (1) result in a fair hearing of the matters, and (2) result in a fair distribution of the work. But it is clear that the system may be manipulated or overridden for special reasons."
These reasons are not necessarily sinister, Professor Weaver adds. "Some judges have special expertise – i.e., asbestos law – that is sometimes a reason to ignore the assignment system. Also, judges may simply pass on a case until it hits the 'right' judge. I don't know if that may be done in the D.C. district court, as there appears to be no mechanism for a judge to do that."
And while there may be a certain number of judges in the pool (in D.C. district, there are a total of 21 judges of different rank), they might not all be available at any given time. A heavy workload, as well as vacations, health problems, or special assignments, "may also take a judge out of the pool," says Weaver (interestingly, one of the "special assignments" he mentions might include a posting on the Foreign Intelligence Surveillance Court).
Finally, the professor adds, selection "is done electronically – a name pops up when a case is assigned. I believe the 'popping up' is in a set order rather than random."
These factors would lead one to consider that perhaps the "randomness" of appointments, at least in the cases of interest here, are more often the outcome of certain anticipated coincidences or human interventions.
There is a further dimension here. While people are used to imagining that key decisions are usually made so high-up as to be invisible to the masses, they never consider the opposite – that sometimes important decisions can be made at such low levels that invisibility is assured by the practical anonymity of those involved. Entrenched, mid-level bureaucrats in the courts (as in all other institutions) about whom we will never know play their own part. Considering the magnitude of the cases we are talking about here, it becomes troubling that "there is no public process," as Professor Weaver attests. "It is done by the clerk of the court under direction – at least in the D.C. district courts – of the scheduling committee made up of judges."
The official D.C. Circuit Court rules contain "sanction provisions for violation of the assignment rules," says Professor Weaver, adding, "but it is unclear to me whether or not the senior judge and the scheduling committee may simply assign cases as they see fit."
Without a public procedure, how would we even know?
Ambiguous Decisions
As we will see later, the assignment of Judge Reggie Walton to the Plame case is a highly suspicious one that the administration should be called upon to justify. And perhaps it becomes even more suspicious when we consider, in due fairness to the judge, that he has also ruled against the government, and sharply criticized it, in other cases. Given his cumulative record, the fact that Walton has so efficiently stonewalled the Sibel Edmonds case can be seen as a glaring anomaly. The similarities between her case and Libby's, theoretically and materially, are what give rise to concerns that Judge Walton is unlikely to be able to render a fair decision in the latter's upcoming trial.
On what occasions has Judge Walton stood up to the government? Most recently, in the case of a suicidal Bahraini detainee at Guantanamo Bay, Walton ordered the Bush administration "to submit a sworn statement describing [the detainee's] actual conditions" in the prison. Apparently, he did not buy the government's testimony that the Bahraini "had been provided with 'adequate care' and that he 'has no rights at all,'" as his lawyer summarized it.
Some earlier cases decided by Judge Walton also went against the government, as the Daily Kos pointed out. In one, the judge ruled that hobby rocketeers are free from federal restrictions. In another ruling, the judge found that the government had "violated the Freedom of Information Act by concealing documents related to a deal cut in secret that makes development possible on millions of acres of America's last wild lands." Environmentalists were overjoyed by the ruling. And the judge also took a liberal position in January 2004, when he "rejected a Second Amendment challenge to the District [of Columbia's] comprehensive gun ban."
Further, in the FOIA case, Judge Walton "ordered the Interior Department to release the redacted documents within 30 days or come up with a legal explanation for withholding them. Judge Walton found that none of the reasons provided by the agency for hiding documents met the law's strict limits on when the government can keep information from the public."
On the other hand, however, the judge apparently gave the Justice Department wide latitude to fit into "the law's strict limits" in withholding and blanketing all information related to the Edmonds case.
This demonstrated ambivalence between the judge's decisions to demand government accountability in some cases and reward its secretiveness in others makes the outcome of the Libby case an enigma. Of course, Patrick Fitzgerald is tenacious and hard-charging, and he also has the "home court advantage" of, in this case, being the government in his designated capacity as prosecutor. The Libby team initially tried to shrug off the Plame leak as simple "chatter" or gossip or a failure of memory. But what if they find it expedient to invoke the need for secrecy to defend national security? Things could become more complicated yet.
A Simple Lack of Curiosity?
Closely related with the judge's occasional championing of governmental secrecy is the question of how he views his role and its limits, the invoking of which can be cited as justification for his actions, whether he believes in them or not from a philosophical point of view. Relevant here is the precedent of yet another national security-related case assigned to Judge Walton, the civil defamation lawsuit filed against the Justice Department by scientist Steven J. Hatfill, a bio-terrorism expert who charged that the government had maliciously smeared him by implying his involvement with the infamous anthrax attacks in Washington and also terrorized him through constant FBI surveillance. Judge Walton did sympathize with Hatfill, stating that "the man's a pariah. Nobody's going to hire him." Yet despite this sympathy, there are strange similarities with the Edmonds case in the way the judge handled (or did not handle) this case.
While Hatfill's lawyers wanted Judge Walton to rule on "whether the [FBI] investigation was properly conducted," the judge stated that "I don't micromanage the investigation. … I don't know all of the information the government knows." To which the lawyers countered, "[W]e're not asking for micromanagement here … we're asking for a day in court to cover abuses that have already occurred."
This echoes the Edmonds case, in which the whistleblower was asking merely that her charges regarding past FBI abuses be heard. Yet by stonewalling the case, as we will soon see, Judge Walton also showed a marked disinterest, it seemed, into even getting into "all of the information the government knows," as he put it in the first case. This issue is likely to be absolutely pivotal in the Libby trial, and if these precedents are anything to go by, it seems likely that Judge Walton will go into it invoking the same austere interpretation of the judge's limited powers that emerged in those two cases. But there are strong reasons to suspect that this will be less an interpretation of constitutional powers than an externally stimulated partisan whitewash order from the White House.
The Chronology of a Judicial Sham
The secrecy or at least lack of a public procedure in judicial appointments discussed above becomes of critical importance when we consider the bizarre concurrence of events that is the Edmonds case – in many respects our best recent guide to what could happen in the Libby trial.
The case, based on 1st and 5th Amendment rights, was originally filed in July 2002, when it was randomly assigned to Judge James Robertson – the very judge who recently resigned from the secret Foreign Intelligence Surveillance Court to protest the Bush administration's chronic deception of the court!
Not surprisingly, Sibel Edmonds remembers Robertson as "a good judge." In fact, when it became obvious that two of the main culprits in the case (Doug and Can Dickerson) were about to flee the country, Judge Robertson "ordered an emergency deposition," recounts Edmonds.
However, in December 2002, "without any reason being cited, we got a notification from the court saying that my case was being removed from Judge Robertson and transferred to Judge Walton – recently appointed by George W. Bush," says Edmonds.
Dismayed with this unexplained decision, her legal team then filed a motion with the court, requesting the case be given to Judge Ellen Segal Huvelle, who had already been appointed to Edmonds' previous FOIA case in May. "Since the cases were relevant," avers Edmonds, "it should have been given/assigned to her ordinarily."
In fact, the court accepted their motion and did assign the case to Judge Huvelle. Yet a week later, a mysterious letter arrived from the court: "[I]t stated that the case had been removed from Judge Huvelle and reassigned to Walton."
Things got stranger. Edmonds claims that under Judge Walton there was "no activity whatsoever for one and a half years; first, he scheduled a status hearing for March 2003, but one day before the scheduled date, he sent us a notice canceling it and postponing it to July 2003. No reason was cited."
Incredibly enough, the process would be repeated. A day before the rescheduled July 2003 hearing, Judge Walton sent another cancellation notice – once again, without giving any reason – this time buying more time for the government by rescheduling the hearing to October 2003.
Come October, the good judge sent another cancellation notification – this time providing a reason, but no rescheduled date. According to Edmonds, the reason given was that "he had to obtain top-secret clearance for his entire office and court clerks."
After that, it took a subpoena of Edmonds for a lawsuit by 9/11 victims' family members to provoke the judge to react. On April 27, 2004, when they subpoenaed Edmonds, "the FBI and DOJ asked for an emergency hearing, and Walton granted it right away."
And this was when things became truly ridiculous. The judge decreed that it would be a violation of "state secrets" for Edmonds to tell the court what languages she spoke, or where she had attended university, or what her date of birth was. He also blocked her deposition.
By early July 2004, Edmonds still had not been granted a hearing in her own case. Nevertheless, Judge Walton had freely allowed the DOJ to make their arguments before him – of course, in secret – and then gladly slammed the gavel down, ruling in their favor.
Refusing to give up, Sibel Edmonds filed her case with the appellate court. It eventually made it to Supreme Court level, but this august body refused to hear it – of course, without giving a reason.
In the crowning blow, a new and separate FTC (Federal Tort Claim) case filed by Edmonds in March 2004 was manipulated in exactly the same way; on the original filing [.pdf], it states that Judge James Robertson was originally assigned to it. So why on earth, Edmonds asks, has it too now been mysteriously reassigned to Judge Walton?
"It's clear from these examples that there is no judicial independence, at least as far as the federal courts go with these high-level cases," she says. "So tell me, how can we really believe that Walton's assignment to the Plame/Libby case was random?"
Indeed, considering the foregoing evidence, it seems that there was nothing random at all about the appointments of Judge Reggie Walton to any of these cases. It would not be out of character for an administration that has gone out of its way to drop the veil of secrecy not only over current governmental actions but also over the past 25 years of presidential activities, for all intents and purposes blocking the release of all presidential papers forever, starting with the heavily Bush-connected Reagan administrations.
Indeed, the policy and personnel overlaps between the Reagan/Bush I regimes and the current ones are perhaps what lie at the heart of the government's apparent manipulation of the judicial system in the case of Reggie Walton.
"Based at least on his involvement with my FTC case," says Edmonds, "Walton knows that my case involves some of the Turkish-American organizations that figure prominently in the former career of Valerie Plame. As you know, the two cases involve basically the same players, who have been active for many years. Further, both Libby and Walton have worked with the White House during the same period in different capacities."
Walton's Financial Nondisclosure: A Disregard for the Law, and Other Ramifications
If a judge does not stick to the law himself, why should the average citizen do so? This is the question critics are asking now regarding the entirely redacted financial disclosure form filed by Judge Walton in which every line has been blacked out [.pdf].
What is interesting here is not necessarily the content of the form, but why the judge had everything on it blacked out. According to Professor Weaver, the Ethics in Government Act "does not allow judges to file completely redacted disclosures at their own discretion – the redactions must be made for security purposes and for only as long as necessary to secure the filer from jeopardy." Professor Weaver has now filed a request for an unredacted version of Judge Walton's financial disclosures, "on the basis that there is no evidence whatsoever that his security is threatened by the revelation of his investments." This is, for the legal critics, a question of principles.
However, it will be tough. While the Ethics in Government Act does not provide for an enforcement mechanism, says the professor, "the Judicial Conference of the United States has a committee that handles judicial financial disclosures. I plan to make a complaint to the chief judge of D.C. and then to the AJC if we do not get an unredacted report. My argument will be that he is a scofflaw and that he reflects poorly on the judiciary by failing to comply with the law. It also prevents litigants from knowing if he has a financial interest that would affect his impartiality in a particular case."
Such "financial interests" could be wide-ranging. What if, for example, Judge Walton has a financial interest in any company or with any individuals subsidizing the Libby Defense Fund? Or with any companies or individuals who may be implicated in the outing of Valerie Plame, or which were targeted in her covert investigations?
Beyond this, and considering the issues that the Edmonds case and Libby/Plamegate case have in common, this may be the crucial sentence in Judge Walton's biography:
"[B]etween 1989 and 1991, Judge Walton served as President George H. W. Bush's Associate Director of the Office of National Drug Control Policy in the Executive Office of the President and as President Bush's Senior White House Advisor for Crime."
This does not imply financial involvement or corruption on the part of the judge, of course; Walton seems to be an honest and upstanding man, and a fine, anti-drugs motivational speaker as well. But it does very much indicate the likelihood that he has intimate, insider knowledge regarding the alleged activities of government officials and agencies that come up in both the Edmonds and Libby cases – prominent figures linked to foreign drug and nuclear smugglers and terrorists in Central Asia, Turkey, and the Balkans. And considering its strenuous attempts to bottle up former presidential records, it's clear that the Bush administration is not planning on opening up regarding any of these subjects unless absolutely forced.
Yet so long as people like Sibel Edmonds are prevented from speaking and the Libby trial remains restricted in scope, we will likely know little about the facts, whatever they may be and wherever they may lead.
Finally, the non-judicial nature of Judge Walton's prior job as a government policy crafter at a very high level, something that must have involved the same cast of characters, denotes in and of itself a conflict of interest. Courts are vexed whenever some famous person is tried and it becomes impossible to find jurors who have no prior opinion of them. That said, in what kind of country is a judge appointed to try his own former colleagues, who themselves are being defended by other former colleagues?
The United States of America is very fond of promoting the rule of law in foreign countries. Ironically, it is now avoiding practicing this itself, when it comes time to protect "certain foreign relations" with those very nations most in need of the rule of law.
If America truly wants to start setting an example, then, it could start by really honoring its institutions and laws, rather than just making a smoke-and-mirrors simulation of their application. For Judge Walton to recuse himself from both the Edmonds and Libby cases would be a fine way to start.