Federal Judiciary

CIA leak case on way to the Court?

By Akin Gump Supreme Court Practice Group

In a ruling that is going to be challenged, perhaps in the Supreme Court soon, the D.C. Circuit Court on Tuesday denied any remedy to a former Central Intelligence Agency officer and her husband in the famous leak case against Vice President Dick Cheney and two former top White House aides — Karl Rove and I. Lewis Libby. The ruling left open the possibility of an apparently narrow claim against former Deputy Secretary of State Richard L. Armitage.  The 2-1 ruling can be read here.

Erwin Chemerinsky, the University of California-Irvine law dean and professor who is representing the former clandestine officer, Valerie Plame Wilson, and her husband, former ambassador Joseph C. Wilson IV, said after the ruling: “We are going forward.  We will either seek en banc review [from the Circuit Court] or proceed directly to the Supreme Court; we talked over all the options, and we want to think about it another day.”

The Circuit Court decided that neither Mrs. Wilson nor Mr. Wilson could pursue any constitutional claims over the disclosure by top officials — including Cheney — of Mrs. Wilson’s CIA role, thus allegedly destroying her career, and the claimed retalation against Mr. Wilson for publicly refuting a Bush Administration story about weapons of mass destruction in Iraq before the U.S. invasion in 2003.

The Wilsons’ lawsuit contended that Cheney and the others spoke to the press, identifying Mrs. Wilson’s secret position, in order to dilute former ambassador Wilson’s public criticism of the Bush Administration’s handling of intelligence in the run-up to the Iraq invasion.

The Court said a series of constitutional challenges fail because the official conduct involved would be covered, if at all, only by the federal Privacy Act.  And that Act, the Court concluded, does not apply to the Vice President or aides to the President or Vice President — Rove was the chief staff aide to President Bush, and Libby was Cheney’s chief of staff.

As to Armitage, the Court said, Mrs. Wilson may have a Privacy Act claim, but Mr. Wilson does not.

Allowing the Wilsons’ lawsuit to go forward, the Court said, would lead the courts into an inquiry of the job risks and responsibility of covert CIA agents, and that is not warranted.

Moreover, the majority concluded that neither Mrs. Wilson nor Mr. Wilson can pursue a claim under federal tort law — the Federal Employees Liability Reform and Tort Compensation Act.  That law, the Court found, does not apply to actions by government officials within the “scope of their employment,” and discussions of the role of Mrs. Wilson or Mr. Wilson ”were of the type that the defendants were employed to perform.”

Chief Judge David B. Sentelle wrote the majority opinion, joined by Circuit Judge Karen LeCraft Henderson.  Circuit Judge Judith W. Rogers dissented in part.  She disagreed with the majority view that none of the constitutional claims could go forward because they had been displaced by the Privacy Act.  She agreed that the Wilsons’ tort claim could not proceed.

All three members of the Court found that they had jurisdiction to hear the Wilsons’ appeal from a District Court ruling dismissing their case; the judges rejected Vice President Cheney’s claim that the dispute involved only a “political question,” beyond the authority of the courts to decide.

The Court also did not rule on the Vice President’s claim that he had “absolute immunity” because of the position he holds.

Full post as published by SCOTUSBLOG on August 12, 2008 (boomark / email).