It may have come a little sooner than many people thought it would, but Judge Bates' ruling in the Wilson's civil suit against Libby, Cheney, et al., should not have come as a huge surprise. Theirs would be a difficult suit to maintain under the best of circumstances; soverign immunity is a powerful longstanding principle in this country that has only a few exceptions.
While an appeal may eventually reverse the trial court ruling, such an outcome, no matter how just it may be, is likewise a long shot. The Wilsons may have no relief available, from the judicial system anyway.
There is however, another possible way they could receive some justice through the legislative process in the form of a private law.
Bivens actions, in which a private citiizen plaintiff can recover damages against federal officials flowing from their violation of the plaintiff's rights, are a rare exception, rather than a normal occurrence. Since the decision in Bivens v. Six Unknown Federal Narcotics Agents was decided in 1971, the trend in the courts has been to limit the scope of such actions, based primarily upon alternative schemes of relief which Congress has established. See Stephen G. Bryer, Richard B Stewart, Cass R. Sunstein & Matthew L Spitzer, Administrative Law and Regulatory Policy 972-973 (5th Ed., Aspen Law & Business, 2002). Some of those schemes have been created by Congress as the result of successful Bivens actions. Failure to avail oneself of such a scheme generally means that the plaintiff failed to exhaust his or her administrative remedy (and that's what Judge Bates indicated in his order).
It is true that the Wilsons could have filed a claim for relief under the Federal Tort Claims Act, which Judge Bates mentioned specifically. Unfortunately, since they didn't back in 2003 when the complained of acts were committed, and the Statute of Limitations for tort actions in the District of Columbia is at most 3 years (see D.C. Code §12-301), it's likely that they could not file a successful claim now.
I would certainly not give up on the legal case. I do believe that there is a reasonably viable counter argument which could prevail on appeal: Futility. Some cases have held that it is not necessary for a plaintiff to go through the FTCA process when to do so would be futile; that is, the actions of the government are such that denial of the claim is a foregone conclusion. With each passing day, I think the WIlsons' argument in this regard gets stronger and stronger. If they were to have filed a claim, it would likely have to have gone to the Office of the Vice President, who was himself alleged to have been involved in the tortious conduct. Who would expect him to approve a claim for damages he is alleged to have partly and intentionally caused?
Still, there is the real possibility that as far as the court system is concerned, that the Wilsons simply have no remedy.
There is an alternative method of compensation that could provide relief, and could itself help to shed light on how Valerie Wilson's identity was disclosed, and by whom. It is an old method that predates the FTCA, and is in fact the way most claims against the U.S. Government were settled prior to the enactment of the Tort Claims act in 1947. It's called a Private Law.
There are two kinds of laws that Congress can pass. One is the Public Law, a law meant to apply to everyone generally. The vast majority of laws are Public Laws. However, let's suppose that it's 1935, and your mail carrier backed a truck into your fence, damaging it. You would not have any way of suing the government. Your alternative to just doing nothing was to go to your member of Congress and making the case that the government ought to compensate you. If your Congressperson agreed, he or she could introduce a bill compensating you. If the Congress passed, and the President signed the law, you would be compensated by the U.S. Treasury.
Since the adoption of the FTCA, such private laws are quite rare. Their use has been officially limited by the rules of the House. The current House Rule states as follows:
- A private bill of private resolution (including an omnibus claim or pension bill), or amendment thereto, may not be received or considered in the House if it authorizes or directs –
(a) the payment of money for property damages, for personal injuries or death for which suit may be instituted under the Tort Claims Procedure provided in title 28, United States Code, or for a pension (other than to carry out a provision of law or treaty stipulation; . . .
H.R. R. XII(4)(a), 110th Cong., 24 (May 24, 2007).
While at first glance, this rule may seem to preclude the introduction of a private bill for the Wilsons, a careful interpretation may indicate otherwise. The terms "property damages, for personal injuries, or death" could be construed the type of damages that are necessary to the maintenance of a claim for general negligence, such as in the case of the mail truck. It could be that Congress did not mean to preclude the provision of relief by private law for acts that could fairly be said to have resulted from intentional acts. "Property damage" could be, and I will assert, should mean what it does in the negligence tort sense: physical damage to personal or real property, and not pure economic loss. "Physical injury, or death" should should be likewise interpreted to have its normal legal meaning: some sort of physical alteration to the body.
If that is the case, then Valerie and Joeseph Wilson would seem to be logical candidates for a private law compensating them for the loss of Ms. Wilson's job and career, and what I can only think must have been amd may still be a great amount of emotional distress.
This procedure has, I believe, two added benefits. First, any private bill regarding compensation for domestic injury is assigned to the Judiciary Committee. That would give John Conyers the ability to look into the circumstances of the leak of Ms. Wilson's identity in a very thorough way, because the case involves an expenditure of public money. Second, any argument that the incident cannot be examined because there is an ongoing court case would lack merit; Congress frequently investigates changes in existing law while there are pending cases dealing with the same subject matter, such as when it changes a criminal statute.
Therefore, I think this is an avenue of relief that ought to be explored. I am hoping some member of the House of Representatives might consider introducing a bill that would compensate the Wilsons for a wrong which we know happened, and for which we (at least partly) know who is responsible. I am a believer in the principle that for every right there is a remedy. Sometimes, however, it just may not be the one I originally had in mind.