Valerie Plame Wilson and her husband, former Ambassador Joseph Wilson, had their lawsuit against Scooter Libby, Dick Cheney, Richard Armitrage, etc., for conspiracy to violate their privacy rights, dismissed by Federal District Court Judge John D. Bates today. The dismissal of their civil action was based on jurisdictional grounds. Specifically, Judge Bates held that the defendants were immune from any private lawsuit against them because the disclosure of Ms. Plame’s identity as a covert CIA operative was within the scope of their “official” duties:
U.S. District Judge John D. Bates dismissed the case on jurisdictional grounds and said he would not express an opinion on the constitutional arguments.
Bates dismissed the case against all defendants: Cheney, White House political adviser Karl Rove, former White House aide I. Lewis “Scooter” Libby and former Deputy Secretary of State Richard Armitage. […]
Bates … sided with administration officials who said they were acting within their job duties. Plame had argued that what they did was illegal and outside the scope of their government jobs.
“The alleged means by which defendants chose to rebut Mr. Wilson’s comments and attack his credibility may have been highly unsavory,” Bates wrote.
“But there can be no serious dispute that the act of rebutting public criticism, such as that levied by Mr. Wilson against the Bush administration’s handling of prewar foreign intelligence, by speaking with members of the press is within the scope of defendants’ duties as high-level Executive Branch officials,” Bates said.
I have to say this is a first. A federal judge has officially made leaking classified government secrets and then lying about them part of the job description of every federal employee, or at least those who work for the White House. A rather astounding claim to make, but Judge Bates obviously had no qualms in basing his dismissal of the Wilson’s lawsuit on that remarkable assertion.
Just to be clear, it is a common defense against a private civil lawsuit to claim sovereign immunity if the conduct which forms the basis of the claim against the named defendant was within the scope of his or her official government duties. The policy reason behind this is quite understandable: without such immunity, every action a government employee took as part of his or her job would be subject to a potentially crippling personal liability. The courts and the government would be tied up with thousands of such cases each year, for who hasn’t objected to how they have been treated by a government official at one time or another in their life?
However, the immunity doesn’t extend to to actions which are outside the scope of the government employee’s official duties. I would have thought that leaking the name of a covert CIA operative in order to obtain vengeance against her husband for exposing the lies about why we went to war in Iraq would have been so far outside the bounds of the official duties of Messrs. Cheney, Libby and their compatriots as to be a clear case where the sovereign immunity defense did not apply. Apparently Judge Bates feels differently, and who knows, maybe in today’s political climate he has a point. Certainly the David Broders, David Brooks and Robert Novaks of the DC punditocracy would agree with him. They all profess to believe that leaking Valerie Plame Wilson’s identity was “fair game” and just a standard part of the political process.
Nonetheless, I’m still flabbergasted that a sitting federal judge would have the chutzpah to make this act of vendetta one of the the justifications for dismissing the Wilson’s lawsuit (the other being the claim that her legal claims are covered by the Privacy Act, an obscure law the courts have previously held does not permit the victim to seek redress in the courts against those who violated its provisions).
Then again, Judge Bates, who was appointed by President Bush in 2001, is the same federal judge who dismissed a lawsuit which claimed the Bush administration had no right to unilaterally withdraw the United States from the ABM treaty back in 2003, in the case of Kucinich v. Bush (caution: pdf file). He was also the federal judge who dismissed the GAO’s lawsuit against Cheney seeking to obtain information regarding the Vice President’s secret Energy Task Force back in 2002.
Bates was also recently appointed to the secret FISA court by the Bush administration to replace a former member of the court, Judge James Robertson, who had resigned in protest over the President’s illegal warrantless surveillance program. So, he’s clearly a judge the Bush administration has relied upon in the past to rule the “right” way in cases involving Executive branch authority and privilege. No surprise then that he would find a way to rule in favor of the White House defendants in the Wilson case.
The Wilsons claim they will appeal Judge Bates decision to dismiss their suit before it could be decided on its merits. Let’s hope they have better luck with the appeals court panel that gets their case than they did with Judge John “Still a Loyal Bushie” Bates.