Trying to make sense of the Wilson v. Libby Dismissal?
Thu Jul 19, 2007 at 05:15:38 PM PDT
As usual, the MSM is tantalizing us with headlines that sizzle, and ledes & soundbites which have lots of drama and conflict... and then move on, after sketchy details and hardly a pretense of analysis, to the next subject.
CNN: Judge tosses out ex-spy's lawsuit against Cheney in CIA leak case
U.S. District Judge John Bates said the lawsuit raises "important questions relating to the propriety of actions undertaken by our highest government officials." But in a 41-page decision, he found Plame and her husband, former U.S. Ambassador Joseph Wilson, failed to show the case belongs in federal court.
Huh?
Well, thankfully, those tubes on the internets can route us around the infotainment spectaculars.
First off, it is helpful to know just who this Judge Bates is. A Bush appointee, (nominated in 1971), he also serves on the FISA court under appointment of Chief Justice John Roberts. His previous experience includes service on the Whitewater witch hunt investigation staff. His prior rulings include dismissal of a 2002 action by Rep. Dennis Kucinich and 32 other members of Congress seeking to overturn President Bush's unilateral withdrawal from the ABM Treaty (See: Legal Committee for Nuclear Policy Press Release (PDF)) You may remember him from his notorious decision protecting Cheney from accountability to the GAO regarding the Vice President's Energy Task Force.
I have seen no mention of any of the foregoing in any of the coverage of the current case, except here in the blogosphere. Which brings us to the current case.
To provide Libby, Cheney, et al. another free pass favorable decision, his honor declared first that the Plaintiffs had not met their burden in asserting a "Bivens Claim." Don't know what a Bivens Claim is? If not, it is unsurprising, since I have seen it mentioned in none of the press accounts of this case to date, despite the fact that it is the very basis of the Wilsons' cause of action. Firedoglake to the rescue! Attaturk, a guest blogging attorney provides a summary of Bivens as it applies here, which includes the following which I think is the heart of the matter (although I recommend following the link to read the whole thing).
Bivens contained more than just a logical clarification; it contained a new and novel expansion of the power of citizens against the government. And this is something quite important to Joe & Valerie Wilson’s case. It ruled explicitly that the Constitution itself, not just statutes or regulations, provided an actionable right to a citizen when that right is violated.
[...]
So you can sue under the 1st, the 4th, the 5th, or the 8th Amendments for lost wages, pain and suffering, emotional harm, and even to some extent punitive damages (there are some restrictions on these that, but that’s for another time). From their suit it is the First and Fifth Amendment the Wilson’s rely upon, that government officials cannot retaliate against an individual exercising First Amendment rights.
Except, that the Judge has now ruled that Bivens doesn't apply in this case? Why? Well you can read the whole strained logic in the decision itself, here: Memorandum Opinion in Wilson v. Libby or wait for Firedoglake to provide their usual high quality analysis.
In the meantime, here are some things to keep in mind as the talking heads practice their usual misdirection craft:
- By deciding that the Plaintiffs failed to pursue all other remedies before asserting a Blevins claim, the court deemed itself not to have subject matter jurisdiction, and thereby avoided having to address any of the substance of the allegations.
- The court further affirmed the defendants' claim of immunity as federal officials acting within the limits of their job descriptions ("scope-of-employment") notwithstanding any illegality of those actions, nor their placing national security at risk! And that bit of legal sleight of hand deserves a quote:
By focusing on the alleged public disclosure of Mrs. Wilson's covert status, plaintiffs have therefore taken too narrow a view of the relevant conduct. D.C. agency law "directs courts to look beyond alleged intentional torts" when assessing whether the actions were of the kind authorized. Id. Instead, the "proper inquiry . . . 'focuses on the underlying dispute or controversy, not on the nature of the tort, and is broad enough to embrace any intentional tort arising out of a dispute that was originally undertaken on the employer's behalf.'" Id. (quoting Weinberg v. Johnson, 518 A.2d 985, 992 (D.C. 1986)). In short, plaintiffs cannot rebut the Westfall certification simply by arguing that defendants' actions were illegal. See Ramey v. Bowsher, 915 F.2d 731, 734 (D.C. Cir. 1990) (per curiam) ("[I]f the scope of an official's authority or line of duty were viewed as coextensive with the official's lawful conduct, then immunity would be available only where it is not needed . . . .").
I still have unanswered questions regarding this case, and its dismissal. I ain't gettin' them from the press, so I'm lookin' on my own. I've shared the foregoing, so that together (and with the help of qualified analysts like those at Firedoglake) we can look beyond the tease journalism this case has inspired.
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DISCLAIMER: I'm not an attorney, nor do I play one on TeeVee. But, neither am I a complete neophyte. I have been employed by litigation and other attorneys to do legal research. However, this diary is an exercise in citizen journalism, not an exercise in amateur legal analysis.
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