CNN Columnist Anthony Sebok writes that Valerie Plame has possible grounds to sue Karl Rove. Courts have generally given the government sovereign immunity from lawsuits. However, Sebok writes that there is an exception to that under the Federal Tort Claim Act. Plame could not sue Rove for implementing a policy. But she could sue Rove for the way in which he put the policy into action:
The FTCA authorizes a broad waiver of the government’s sovereign immunity for claims in tort. But the statute exempts "any claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or employee of the Government, whether or not the discretion involved be abused."
The federal courts have held that decisions that implicate policy judgments are discretionary and exempt from the FTCA. In contrast, decisions which put a policy into action are rote and fall within the FTCA.
In its 1987 decision in Bowman v. United States, the U.S. Court of Appeals for the Fourth Circuit held that the decision of whether to install a guardrail on a stretch of the Blue Ridge Parkway is a discretionary act because the National Park Service has to weigh various factors (cost, safety, etc). On the other hand, had the Park Service erected a guardrail and its foreman, in constructing the guardrail, decided to use cheap materials that failed to work properly and this caused an injury, the person injured by the foreman’s negligent decision could sue the government.
In other words, she cannot sue over the general strategies of the White House’s plan to fix the facts around the evidence. However, she could sue for the specific tactic of outing her name to the media:
Instead, Plame’s complaint would be that, in specific conversations, to further the goal of promoting their agenda, Rove or others may have revealed her identity. She objects, that is, to the specific tactic – not the general strategy.
The specific content of any single conversation seems more like implementing, than creating, a policy of media relations; thus, it is less likely to fall within the discretionary function exception. Just as the National Park Service has to have someone put up guardrails once it has decided to have them, so must the White House have someone make phone calls once they have decided to talk to the press. If someone is injured as a result of the phone call, it would seem that the FTCA should allow the injured party to sue the government for compensation.
But it is important to remember that the real victims in the case are not Joe Wilson and Valerie Plame. The real victims are the American people, as pointed out by the Wilsons, and the countless Iraqi civilians who have been killed, maimed, and forced to live in putrifying stench as there is no water or electricity in Baghdad anymore. And the GOP Governors, Senators, and Congressmen who circle the wagons around Rove bear responsibility as well as the Bush administration. They did not lift a finger to question the Bush administration’s decision to fix facts around the evidence and start a war based on lies. And they will not take a moral stand on the issues and state that what Rove did was wrong.
As pointed out here:
In one perceptive commentary, New York Times columnist Frank Rich wrote July 17 that the public should not “get hung up” on Rove “or on most of the other supposed leading figures in this scandal thus far.” He continued: “Not Matt Cooper or Judy Miller or the Wilsons or the bad guy everyone loves to hate, the former CNN star Robert Novak. This scandal is not about them in the end, any more than Watergate was about Dwight Chapin and Donald Segretti or Woodward and Bernstein. It is about the president of the United States. It is about a plot that was hatched at the top of the administration and in which everyone else, Mr. Rove included, are at most secondary players. That the investigation has dragged on so long anyway is another indication of the expanded reach of the prosecutorial web.”
Rich’s column was entitled, “Follow the Uranium,” and the comparison to Watergate is more than apt, as is his political conclusion: “This case is about Iraq, not Niger. The real victims are the American people, not the Wilsons. The real culprit–the big enchilada, to borrow a 1973 John Ehrlichman phrase from the Nixon tapes–is not Mr. Rove but the gang that sent American sons and daughters to war on trumped-up grounds… this scandal is about the unmasking of an ill-conceived war, not the unmasking of a CIA operative…”
The leaders are responsible for the actions of their followers. This is true even if Bush ultimately did not commit a crime in the Plame affair. The next question to discuss is how the Bush policies led to Karl Rove’s decision to commit treason and out the name of Valerie Plame to the media.
