UPDATE ON THE WILSONS’ LAWSUIT

June 22, 2009:
 
Today the U.S. Supreme Court issued an order denying any further review and bringing to a close Valerie and Joseph Wilson’s civil lawsuit based on the unconstitutional actions of top Bush administration officials.  The Wilsons sued former Vice President Dick Cheney, Karl Rove, I. Lewis Libby, and Richard Armitage for their concerted efforts to destroy Valerie Wilson’s career in retaliation for her husband exposing lies in President George W. Bush’s State of the Union address concerning Iraq’s alleged efforts to purchase uranium from Niger.
 
            Although this is frustrating day for the Wilsons and their counsel, more significantly it is a setback for our democracy.  Joe and Valerie Wilson said, “Government officials can abuse their power for political purposes without fear of repercussion.  And private citizens like us, who see their careers destroyed and their lives placed in jeopardy, have no recourse.
 
 
Statement by the Wilsons and their Legal Counsel:

        The Supreme Court’s denial of review in the lawsuit by Valerie Plame Wilson and Joseph Wilson ends their quest for redress and reflects a disturbing trend towards closing the door to relief on those injured by federal officials.          


        The Wilsons sued former Vice President Dick Cheney, Karl Rove, I. Lewis Libby and Richard Armitage for their concerted effort to destroy Valerie Wilson’s career in retaliation for her husband’s exposing lies in President George W, Bush’s State of the Union address concerning Iraq’s alleged efforts to purchase uranium from Niger.   In clear violation of federal law, top government officials revealed that Valerie Wilson was a secret operative for the CIA, thereby destroying her career, and endangering not only Mrs. Wilson’s family, but also our national security.  These officials’ actions also violated the Wilsons’ constitutional rights by retaliating against them after Joe Wilson exercised his First Amendment right to freedom of speech, invading their privacy, and depriving them of liberty and property without due process.


        Although not questioning the facts of what had transpired, the United States Court of Appeals for the District of Columbia Circuit, in a 2-1 decision, nevertheless dismissed the lawsuit for two troubling reasons, reflecting a trend towards barring suits against federal officials, even when there are allegations of very serious constitutional violations.  First, the court ruled the defendants could not be sued because the federal Privacy Act provides a remedy for invasions of privacy. This was startling given that the court recognized that the act is inapplicable here because no information about Joe Wilson was leaked.  More importantly, the Privacy Act specifically does not apply to the offices of the president and vice president, meaning defendants Cheney, Libby, and Rove cannot be sued for violating this act.  In other words, a statute that admittedly does not apply and provides no remedy was the basis for barring constitutional claims.


        The second ground for dismissal was even more astounding.   The court said that the lawsuit should be barred because it might lead to the disclosure of sensitive national security information --  ironic given that the case arose because the defendants had already disclosed sensitive national security information.  Irony aside, whether such information might be disclosed is merely speculative.  Most of the evidence was made public during Libby’s criminal trial and it is unlikely the Wilsons would need to release additional sensitive information to prove their case.  Even if such public disclosure was required, however, surely the courts could place some material under seal or, in an extreme situation, dismiss a particular claim.  There was no reason, however, to dismiss the entire case now because at some future time some form of sensitive information might be needed.


        Unfortunately, the dismissal of the Wilsons’ suit reflects a larger pattern of federal courts refusing to hear constitutional claims against federal officers.  If a federal official violates the Constitution, the United States government, which has sovereign immunity, generally cannot directly be sued for money damages.  Therefore, those seeking redress must sue individual federal officers.   In 1971, after an individual was subjected to an abusive and illegal search, the Supreme Court held in Bivens v. Six Unknown Named Federal Agents of the Federal Bureau of Narcotics that federal officials can be sued for money damages when they violate individuals’ constitutional rights. Justice John Marshall Harlan, in a concurring opinion, explained that for someone in Bivens’ shoes, it is money damages or no remedy at all.


        In the ensuing years, the Supreme Court has cut back on the ability of injured individuals to sue federal officials.  In one 5-4 decision, the Court held soldiers who were subjected to human experimentation without their knowledge or consent could not sue the officials responsible.  In another 5-4 ruling, the Court held individuals whose disability benefits were illegally terminated could not sue for damages.   More recently, also in a 5-4 decision, the Court held a corporation running a prison under a contract with the federal government could not be sued.  All of these decisions mean that those hurt by unconstitutional acts of federal officials likely have no remedy at all.  This undermines government accountability


        With the Supreme Court’s refusal to hear the Wilsons’ case, the courts have cut back individuals’ rights even further, for the first time barring a suit based on an inapplicable statute.  It is sad that the Supreme Court would not hear this case, that the Wilsons will never get their day in court, and that Cheney, Rove, Libby, and Armitage never will be held accountable for their illegal and unconstitutional actions.  It is even sadder, however, to realize that following this decision, future government officials may be emboldened to violate citizens’ constitutional rights without fear of repercussions.

November 17, 2008:   In response to the Court of Appeals November 17, 2008 denial of the Wilsons' petition for rehearing of their civil case against Vice President Cheney, Scooter Libby, Karl Rove, Richard Armitage and other unnamed officials, CREW's executive director Melanie Sloan stated, "The Wilsons and their counsel are certainly disappointed by the Court of Appeals' decision, but it is not over yet.  Now we will petition the Supreme Court to hear the case."   Sloan continued, "There must be consequences when government officials abuse their power and endanger national security for political ends.  This is an issue worth fighting over and we will not give up."

July 16, 2008: Today, President Bush exerted Executive Privilege over Special Prosecutor Fitzgerald’s Interviews with President Bush and Vice President Cheney. Following is a statement from Congressman Henry Waxman: 

Opening Statement of Rep. Henry A. Waxman
Chairman, Committee on Oversight and Government Reform
July 16, 2008

Five years ago, one of the nation’s most carefully guarded secrets - the identity of covert CIA agent Valerie Plame Wilson - was repeatedly revealed by White House officials to the media.

This was a serious breach of our national security.  CIA Director Michael Hayden disclosed to the Committee that Ms. Wilson “worked on some of the most sensitive and highly secretive matters handled by the CIA,” that she “faced significant risks to her personal safety and her life,” and that the disclosure of her identity “placed her professional contacts at greater risk” and “undermined the trust and confidence with which future CIA employees and sources hold the United States.”

President George W. Bush’s father, the former President Bush, has said:  “I have nothing but contempt and anger for those who ... expos[e] the names of our sources. They are, in my view, the most insidious of traitors.”

For the last five years - first in the minority and now in the majority - I have tried to investigate what really happened.  And the White House has resisted oversight every step of the way.

Special Counsel Patrick Fitzgerald’s investigation brought new facts to light.  We learned from his work that both the Vice President’s top advisor, Scooter Libby, and the President’s top advisor, Karl Rove, repeatedly leaked Ms. Wilson’s identity to the media.

But there were questions that Mr. Fitzgerald could not answer.  One was the role of Vice President Cheney.

Mr. Fitzgerald addressed this issue in his closing statements to the jury.  He said:

“There is a cloud over what the Vice President did that week. ... He had those meetings.  He sent Libby off to Judith Miller at the St. Regis Hotel. ... We didn’t put that cloud there.  That cloud remains.”

The Committee’s inquiry has tried to penetrate the cloud surrounding Vice President Cheney’s conduct.  But today, the President has asserted executive privilege and is withholding from the Committee and the American people key evidence about Vice President Cheney’s actions.

During our investigation, we have learned that Mr. Libby told the FBI that it was “possible” that the Vice President instructed him to leak Ms. Wilson’s identity.

That would be an extraordinary breach of the public trust.

There is a key document that could explain what the Vice President knew and what he did:  the report of the Vice President’s interview with FBI officials working for Mr. Fitzgerald.

If there is one document that could pierce the cloud hanging over the Vice President, this is it.

After a year of fruitless negotiations with the Justice Department, the Committee subpoenaed the FBI interview report.  The White House objected and Attorney General Mukasey refused to comply with the subpoena.

In effect, Attorney General Mukasey created a double standard.  Ten years ago, his predecessor, Attorney General Janet Reno, provided the Committee the FBI interviews of both President Clinton and Vice President Gore.  Mr. Mukasey decided that a different rule should apply to Republican presidents than to Democratic presidents.

Today President Bush has taken the extraordinary step of asserting executive privilege over the Vice President’s interview with criminal investigators.

The claim of executive privilege is ludicrous.

We are not seeking access to the communications between the Vice President and the President.  We are seeking access to the communications between the Vice President and FBI investigators.  The Vice President talked with the FBI investigators voluntarily and he did so knowing that what he said could be disclosed publicly in a criminal trial. Mr. Fitzgerald told us
that “there were no agreements, conditions and understandings” that limited Mr. Fitzgerald’s use of the interview in any way.

This unfounded assertion of executive privilege does not protect a principle; it protects a person.

The President is wrong to shield Vice President Cheney from scrutiny.  In our system of government, even the Vice President should be accountable for his actions.

The President’s action raises an obvious question:  Why is the President preventing responsible congressional oversight of the Vice President?  If the Vice President did nothing wrong, what is there to hide?

A letter that the Committee received this morning from the Attorney General to the President also raises questions about the President’s involvement.  According to the Attorney General, the documents being withheld summarize conversations held directly with the President.  The subjects discussed in the withheld documents include the preparation of the 2003 State of the Union address, the accuracy of the claim that Iraq was trying to obtain uranium from Niger, and the decision to send Ambassador Joe Wilson to Niger.

The White House misled the nation about Iraq’s weapons of mass destruction.  On the eve of the war, the Vice President said:  “we believe he has, in fact, reconstituted nuclear weapons.”

White House officials then misled the nation about their involvement in leaking Ms. Wilson’s name.  One top official, Mr. Libby, was convicted of perjury.

Yet now that the Committee is trying to find out what really happened, the President has blocked the Committee’s inquiry by asserting executive privilege over key documents.

Although I have grave reservations about the validity of the President’s action, I will not ask the Committee to act on the contempt resolution at this time.  All members deserve the opportunity to review the President’s claim. Moreover, I want to consult closely with Ranking Member Davis about the Committee’s next step.

The Committee will be deliberative in responding to this surprising assertion of executive privilege.  But we will also be determined.  The President’s actions have darkened the cloud over the Vice President and left important questions unanswered.

As the Committee considers its next steps, I hope the President and the Vice President will also consider theirs.  Congress and the American public are entitled to know what role the President and the Vice President played in the despicable outing of Ms. Wilson.

On Friday May 9th 2008, the United States Court of Appeals for the District of Columbia Circuit heard the appeal by Valerie Plame Wilson and Joseph Wilson in their suit against I. Lewis Libby, Vice President Dick Cheney, Karl Rove, and Richard Armitage. The suit alleges that the defendants acted in concert to destroy Valerie Plame Wilson's career in retaliation for Joseph Wilson revealing falsehoods in the President's 2003 State of the Union Address.

In July 2007, the federal district court dismissed the suit saying that the plaintiffs could not sue under the Constitution because Congress in passing the Privacy Act in 1974 meant to foreclose such suits. Also, the district court said that the suit risked the disclosure of confidential information.

On appeal, the Wilsons' lawyers argued that no statute provides them a remedy or even applies and that therefore the district court erred in dismissing the suit. The Privacy Act does not apply to the offices of President or Vice President, and besides has no application to claims for violation of the First Amendment or denial of equal protection. Moreover, Wilson's lawyers argued that there is little risk of disclosing confidential information and it is wrong to dismiss the entire case because of speculation that this might occur.

Erwin Chemerinsky, a law professor at Duke University, argued for the Wilsons and Jeffrey Bucholtz, an attorney at the United States Department of Justice, argued for all of the defendants. The judges were Chief Judge David Sentelle, and Circuit Judges Karen Henderson and Judith Rogers. The judges aggressively asked questions of both sides and the Wilsons' lawyers were cautiously optimistic at the end of the hearing.