Professional Documents
Culture Documents
Oickle: ALL THE VICE PRESIDENT'S MEN
Oickle: ALL THE VICE PRESIDENT'S MEN
COMMENTS
ALL THE VICE PRESIDENTS MEN:
HOW THE COURT IN WILSON V.
LIBBY MISINTERPRETED THE
PRIVACY ACT AND DENIED A
REMEDY FOR THE ILLEGAL
DISCLOSURE OF VALERIE PLAME
WILSONS COVERT CIA IDENTITY
Kristin I. Oickle*
Abstract: On July 14, 2003, Robert Novaks weekly column dismissed Joe
Wilsons 2002 report for the CIA, which concluded that an Iraqi purchase of
nuclear material was highly unlikely. According to Novak, Wilsons report
was considered insignificant, and neither the President of the United States
nor the Director of the CIA ever saw the report before American soldiers
were sent to Iraq in 2003. Wilson, a former diplomat, had only been put up
for the low-level mission due to his wife, Valerie Plame Wilson, a CIA
operative. To most reading Novaks column in the Monday morning edition
of the Washington Post, the reference to Ms. Wilson was fleeting and hardly
noticeable. But to Ms. Wilson, her husband, and the CIA, the significance
was both immediately apparent and devastating. Ms. Wilsons status as a
covert CIA agent was confidential, and revealing her identity destroyed her
career, put her and her family in danger, and compromised important U.S.
intelligence.
In a subsequent civil suit against federal officials for constitutional violations
and tortious invasion of privacy, the U.S. Court of Appeals for the District of
Columbia denied the Wilsons any remedy. After examining the availability
*
Candidate for Juris Doctor, New England School of Law (2010). B.A., Political Science,
Stonehill College (2006). Special thanks to my parents, Terry and Janell Bauer, Justin
Vartanian, Darrell and Jayne Vartanian, and Kelly Wyand for their support through this
process. This article is dedicated to my first editor, my father, the late M. Scott Oickle.
971
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of relief under the Privacy Act and Bivens, this Comment argues that the
majority misconstrued precedent relating to Bivens, as well as the purpose
and extent of the Privacy Act. In refusing to afford the Wilsons any judicial
remedy for the violation of vested legal rights, the court wrongfully denied
the Wilsons the essential protection of the laws.
INTRODUCTION
In the landmark case Marbury v. Madison,1 Chief Justice John
Marshall declared: The very essence of civil liberty certainly consists in
the right of every individual to claim the protection of the laws, whenever
he receives an injury. One of the first duties of government is to afford that
protection.2 He went on to say, [t]he government of the United States has
been emphatically termed a government of laws, and not of men. It will
certainly cease to deserve this high appellation, if the laws furnish no
remedy for the violation of a vested legal right.3
Valerie Plame Wilson and her husband Joe Wilson filed a civil suit
against federal officials for alleged constitutional violations and tortious
invasion of privacy, but they were denied any remedy by the U.S. Court of
Appeals for the District of Columbia.4 The suit stemmed from a newspaper
article written by Robert Novak that destroyed Ms. Wilsons covert status
as an agent with the Central Intelligence Agency (CIA).5 Ms. Wilson
alleged that her identity was obtained by Mr. Novak through leaks from the
White House.6 She further alleged that the White House leaked this
information to several reporters as retaliation for her husband speaking out
against the George W. Bush Administration in an Op-Ed piece.7
Specifically, Mr. Wilson, a retired diplomat who had gone to Africa on a
fact-finding mission, asserted that in an attempt to sell the Iraq War to the
American people, the Bush Administration falsely claimed Saddam
Hussein had sought major quantities of uranium from Africa.8 Shortly
thereafter, Mr. Novaks article was published.9 The named officials
10. Wilson v. Libby, 535 F.3d 697, 701 (D.C. Cir. 2008). Karl Rove, Richard Armitage,
and Scooter Libby have since been identified as the sources who provided Ms. Wilsons
identity to reporters. See Robert Novak, My Role in the Valerie Plame Leak Story, HUMAN
EVENTS, July 7, 2006, http://www.humanevents.com/article.php?id=15988; Joel Seidman,
Plame Was Covert Agent at Time of Name Leak, MSNBC, May 29, 2007, http://www.
msnbc.msn.com/id/18924679/.
11. See United States v. Libby, 498 F. Supp. 2d 1, 2 (D.D.C. 2007).
12. Seidman, supra note 10. Following a request from the Citizens for Responsibility
and Ethics, a federal judge recently ordered the release of Vice President Cheneys
interview regarding the leak. Associated Press, Judge Orders FBI to Release Cheney
Interview in Leak Case, FOX NEWS, Oct. 1, 2009, http://www.foxnews.com/
politics/2009/10/01/judge-orders-fbi-release-cheney-interview-leak-case/?test=latestnews.
Cheney was unable to recall any key information, including whether he discussed Ms.
Wilson with Libby prior to Novaks article, despite evidence at Libbys trial that indicated
that Cheney had discussed Ms. Wilson with Libby one month prior to the article. Associated
Press, Cheney Told FBI No Idea Who Leaked Plame ID, MSNBC, Oct. 30, 2009,
http://www.msnbc.msn.com/id/33556198/ns/politics-more_politics/.
13. See Wilson, 535 F.3d at 702.
14. Id. at 703.
15. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388, 397 (1971).
16. Wilson, 535 F.3d at 714 (Rogers, J., concurring and dissenting) (citing Wilkie v.
Robbins, 551 U.S. 537, 550 (2007)).
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17. Id. (internal quotations omitted) (quoting Wilkie, 551 U.S. at 550).
18. Id. (internal quotations omitted) (quoting Wilkie, 551 U.S. at 550) (error omitted).
19. See id. at 713 (majority opinion).
20. See id. at 710.
21. Id. at 707.
22. See Wilson, 535 F.3d at 709-10, 714.
23. 5 U.S.C. 552a (2006).
24. See generally S. REP. NO. 93-1183 (1974), reprinted in 1974 U.S.C.C.A.N. 6916,
6916 (stating the purpose of the Act is to promote governmental respect for the privacy of
citizens by requiring all departments and agencies of the executive branch and their
employees to observe certain constitutional rules).
25. See generally id.
26. See Wilson, 535 F.3d at 721 (Rogers, J., concurring and dissenting).
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finding that, if heard, the case would inevitably involve delving into
national secrets and jeopardize national security for several reasons. First,
the damage has been doneMs. Wilsons covert identity was already
revealed. Second, even if these proceedings require some examination of
confidential information, there are procedural safeguards in place to ensure
the utmost care in such situations, as the courts have successfully done on
numerous occasions in the past. Thus, the conclusion of the court is pure
speculation and should not be considered a special factor counseling
against judicial relief.
ACT, AND THE FEDERAL ADVISORY COMMITTEE ACT 199, 310 (Harry A. Hammitt et al. eds.,
21st ed. 2002) [hereinafter LITIGATION UNDER THE FEDERAL OPEN GOVERNMENT LAWS]
(stating that the scope of the term does not include the president or his immediate staff).
54. See Jo Ann F. Wasil, Annotation, What Is Record Within Meaning of Privacy Act
of 1974 (5 USCS 552a), 121 A.L.R. FED. 465 (1994).
55. See id. 5.5 (Supp. 2009).
56. See Wilson v. Libby, 535 F.3d 697, 716 (D.C. Cir. 2008) (Rogers, J., concurring and
dissenting).
57. 5 U.S.C. 552a(g)(1)(D).
58. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 138
(1980) (holding that the Office of the President is not an agency); Schwarz v. U.S. Dept
of Treasury, 131 F. Supp. 2d 142 (D.D.C. 2000), affd, No. 00-5453, 2001 WL 674636, at
*1 (D.C. Cir. May 10, 2001) (holding that the Vice Presidents office is not an agency);
LITIGATION UNDER THE FEDERAL OPEN GOVERNMENT LAWS, supra note 53, at 199, 310.
59. See Wilson, 535 F.3d at 701.
60. See id.
61. Id. at 713.
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dismissal of the case.62 The court cited two reasons for dismissing the
Wilsons claims and denying a Bivens remedy.63 First, the Privacy Act
constituted a comprehensive remedial scheme, which addressed the harm
done, and second, the sensitive intelligence information involved in hearing
the case counseled against judicial relief.64
The Wilsons first argued that the Privacy Act should not be
considered a comprehensive remedial scheme because it precludes these
particular officials from incurring liability.65 The court stated that, on the
contrary, a comprehensive statute need not provide complete relief to
preclude a Bivens remedy.66 In this regard, the court noted that other
plaintiffs were denied a Bivens remedy where the comprehensive statute
did not provide complete relief.67 Next, the court reasoned that the
information the Wilsons claimed was improperly disclosed was within the
scope of the Privacy Act provisions.68 While conceding the fact that the
Offices of the President and Vice President are exempted from liability
under the Privacy Act, the court still declined to afford a Bivens remedy,
citing binding precedent.69 Further, the court noted that they were bound to
respect the decision of Congress to intentionally exclude those offices from
the Privacy Act.70
The Wilsons next argued that, where the Supreme Court denied
Bivens remedies in the past, there had been alternative remedies available
to plaintiffs, whereas they would have no remedy at all.71 The court stated
that even if there was no remedy for Mr. Wilson, Ms. Wilson could still
seek relief under the Privacy Act against Richard Armitage, a member of
the Department of State,72 and therefore she had some potential relief.73
Moreover, the court concluded that affording any remedy at all was not
62. Id.
63. See id. at 704.
64. See id.
65. See Wilson, 535 F.3d at 707.
66. Id. at 705-06.
67. See id. (citing Wilkie v. Robbins, 551 U.S. 537. 562 (2007); Schweiker v. Chilicky,
487 U.S. 412, 429 (1988); Bush v. Lucas, 462 U.S. 367, 390 (1983)).
68. Id. at 707.
69. Id. at 707-08 (citing Spagnola v. Mathis, 859 F.2d 223, 228 (D.C. Cir. 1988)).
70. Id. at 708.
71. Wilson, 535 F.3d at 709.
72. Because Armitage was not a member of the Executive Office of the President, Ms.
Wilson was not precluded from seeking a remedy under the Privacy Act, according to the
court. Id.
73. See id.
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in Wilkie, the plaintiff had some procedure to defend and make good on
his position, including the means to be heard, through an administrative,
and ultimately a judicial, process.85 Spagnola is distinguishable from this
case because there was little doubt that Congress had brought the
plaintiffs claims within the statutes ambit as it . . . technically
accommodated their constitutional challenges.86
Additionally, the Supreme Court held in Davis v. Passman that
although Congress exempted certain members of Congress from liability
under the particular acts provisions, the plaintiff could still bring her
constitutional claims.87 The D.C. Circuit Court of Appeals itself held that
where a statute provides no protection for constitutional violations and
there is nothing to suggest that Congress intended to preclude such suits, a
Bivens remedy is possible.88
Finally, the dissent noted that Ms. Wilsons undercover identity had
already been revealed; thus, there likely was no issue regarding the
difficulty of reviewing classified information in court proceedings.89
Further, even if litigation required an inquiry into sensitive information, the
courts are well-equipped for this undertaking because there are procedural
safeguards in place for just this situation, such as evidentiary rules and the
immunity defense.90 Therefore, the potential for reviewing classified
information is not a special factor that precludes litigation.91
85. Wilson, 535 F.3d at 715 (Rogers, J., concurring and dissenting) (alterations omitted)
(internal quotations omitted) (quoting Wilkie v. Robbins, 551 U.S. 537, 552-53 (2007)).
86. Id. (alterations omitted) (internal quotations omitted) (quoting Spagnola v. Mathis,
859 F.2d 223, 229 (D.C. Cir. 1988)).
87. See 442 U.S. 228, 247-48 (1979).
88. See Ethnic Employees of Library of Cong. v. Boorstin, 751 F.2d 1405, 1415-16
(D.C. Cir. 1985).
89. See Wilson, 535 F.3d at 713 (Rogers, J., concurring and dissenting).
90. Id.
91. See id.
92. See Amended Complaint, supra note 6, at 18-21.
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93. See 5 U.S.C. 552(a) (2006); OVERVIEW OF THE PRIVACY ACT, supra note 47, at 4.
See generally S. REP. NO. 93-1183 (1974), reprinted in 1974 U.S.C.C.A.N. 6916.
94. See infra Part III.A.3.
95. Wilson, 535 F.3d at 707.
96. See Wilkie v. Robbins, 551 U.S. 537, 550 (2007); Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 405 (1971) (Harlan, J., concurring).
97. See Amended Complaint, supra note 6, at 18-21.
98. See id. at 19.
99. See id. at 20.
100. See id.
101. See id. at 18-19.
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equal protection of the laws was also violated because this subjected him to
different treatment than other writers in his position.102
As support for these claims, the Wilsons stated that the injuries they
suffered included their familys subjection to heightened risks because the
nature of Ms. Wilsons position rendered them a target for those hostile
toward the United States.103 Further, Ms. Wilson was unable to continue in
her position at the CIA in the same capacity, as her employment depended
on her identity remaining classified.104 Clearly, the Wilsons alleged
constitutionally protected interests and provided support for how those
interests had been violated.105 The majority did not offer an argument to the
contrary.106 Therefore, the first aspect of the Bivens test was satisfied.
A close examination of the precedent reveals that the Supreme Court has
never denied a Bivens remedy where the plaintiffs would be left with no
redress for their injuries at all.113
For example, where an aerospace engineer brought suit against the
director of a space flight center operated by the National Aeronautics and
Space Administration for defamation, the Court in Bush v. Lucas denied a
Bivens remedy because the plaintiffs specific claim was covered under the
Civil Service Reform Act, which provided a partial remedy.114 The Court
further stated that this was not a situation where the wrong would be
without redress; rather, the statute was an elaborate remedial system that
has been constructed step by step, with careful attention.115 In Schweiker
v. Chilicky, the Court found that Congress had provided a remedy for the
plaintiffs particular harm in the Social Security Act.116 Although plaintiffs
who had suffered the discontinuation of their social security benefits could
not receive money damages, the Court found that a Bivens remedy was
inappropriate because the plaintiffs had already had their benefits
reinstated, and Congress had purposely omitted the potential for such
damages from the Social Security Act.117
In Correctional Services Corp. v. Malesko, the Supreme Court also
declined to extend a Bivens remedy to a corporation, a new species of
defendant, in part because the plaintiff had alternative remedies [that
were] at least as great, and in many respects greater, than anything that
could be had under Bivens.118 The plaintiff, a prisoner who had been
injured in a fall, had a remedy in tort and access to other remedial
mechanisms established by the Board of Prisoners.119 The Court
emphasized that Bivens remedies were reserved for plaintiffs with no other
remedy for constitutional violations by federal officials.120 Similarly, in
Wilkie v. Robbins, the Supreme Courts most recent denial of a Bivens
remedy, although there was no single elaborate remedial scheme, a process
was available to the plaintiff for each of his claims by which his injuries
could be adequately rectified.121 In these instances where a Bivens remedy
was denied due to the existence of an alternate remedial scheme, it was
clear that Congress considered the rights of persons situated as were the
122. See Wilson v. Libby, 535 F.3d 697, 719 (D.C. Cir. 2008) (Rogers, J., concurring and
dissenting) (alterations omitted) (internal quotations omitted) (quoting Schweiker v.
Chilicky, 487 U.S. 412, 425 (1988)).
123. See id. at 707-08 (majority opinion) (Thus, even if the Wilsons can prove their
allegations . . . they will not be remunerated for them.).
124. See id. at 721 (Rogers, J., concurring and dissenting).
125. See id.
126. See supra notes 108-110 and accompanying text.
127. See Wilson, 535 F.3d at 716 (Rogers, J., concurring and dissenting).
128. See generally Carlson v. Green, 446 U.S. 14 (1980); Davis v. Passman, 442 U.S.
228 (1979); Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971).
129. See Davis, 442 U.S. at 230-31.
130. See id. at 247.
131. See id. at 245-47.
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132. Id. at 245 (quoting Bivens, 403 U.S. at 410 (Harlan, J., concurring)).
133. See Carlson, 446 U.S. at 16.
134. See id. at 20.
135. See id. at 19, 23.
136. See Wilson v. Libby, 535 F.3d 697, 714-15, 721 (D.C. Cir. 2008) (Rogers, J.,
concurring and dissenting).
137. See Wilson, 535 F.3d at 713; supra note 24 and accompanying text.
138. See Wilson, 535 F.3d at 718; OVERVIEW OF THE PRIVACY ACT, supra note 47, at 4;
see generally S. REP. NO. 93-1183 (1974), reprinted in 1974 U.S.C.C.A.N. 6916.
139. Davis v. Passman, 442 U.S. 228, 247 (1979) (internal quotations omitted) (quoting
Davis v. Passman, 571 F.2d 793, 800 (5th Cir. 1978)).
140. See Carlson, 446 U.S. at 19.
141. See 5 U.S.C. 552a (2006).
142. See Wilson, 535 F.2d at 718 (Rogers, J., concurring and dissenting).
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protection, not to subtract from it.143 The Act was simply not meant to
create a per se bar to relief for constitutional wrongs by federal officials,
leaving the Wilsons with no remedy at all.144 This is expressed in the
legislative history of the Privacy Act, which explicitly states the Act
should not be construed as a final statement by Congress on the right of
privacy and other related rights as they may be developed or interpreted by
the courts.145 In light of this, there was no basis for denying the Wilsons a
remedy on account of the Privacy Act.
federal officials responsible for leaking Ms. Wilsons identity would send
the message that they are not above the law and that such dangerous and
illegal actions are not condoned.
152. The Totten doctrine precludes litigation involving a currently covert CIA agent. See
Totten v. United States, 92 U.S. 105, 107 (1875).
153. The IIPA makes it illegal for anyone to disclose a covert agents identity. 50 U.S.C.
421 (2006).
154. Wilson v. Libby, 535 F.3d 697, 710 (D.C. Cir. 2008).
155. Id. at 720 (Rogers, J., concurring and dissenting); see 50 U.S.C. 421 (2006).
156. See, e.g., Carlson, 446 U.S. at 20 (holding that the plaintiff could obtain a Bivens
remedy for her claims under the Constitution, despite the fact that she could also bring them
under the Federal Torts Claim Act (FTCA), because punitive damages were unavailable
under the FTCA).
157. Cf. id.
158. See Totten v. United States, 92 U.S. 105, 107 (1875).
159. See Wilson, 535 F.3d at 720 (Rogers, J., concurring and dissenting).
160. See id. at 710 (majority opinion).
161. See id.
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of the named officials in revealing Ms. Wilsons identity would likely only
involve already revealed information.162 Further, even if the court must
review classified information, there are procedural safeguards in place that
address the informations sensitive nature.163
Courts have litigated sensitive intelligence in the past and are quite
able to do so without compromising national security.164 Procedural devices
that help to resolve any potential problems include in camera judicial
review, appointing a master who has been granted security clearance to
determine which classified documents can be produced for discovery, and
statements admitting the relevant facts that the classified documents would
tend to prove.165 However, since the Wilsons had not indicated how and
through what evidence they intended to prove their case, the majoritys
dismissal of the case based on speculation that litigation might have
required some review of classified information was both conclusory and
premature.166
CONCLUSION
In conclusion, the D.C. Circuit Court of Appeals should not have
dismissed the Wilsons constitutional claims because the Bivens
requirements were satisfied. The first prong was satisfied when the
Wilsons constitutionally recognized interests were invaded by federal
officials.167 The facts the Wilsons alleged surrounding the disclosure of Ms.
Wilsons identity certainly provide sufficient ground for claims of First and
Fifth Amendment violations.168
The second factor of the Bivens rule is similarly satisfied because
there is no comprehensive remedial scheme that provides sufficient or
effective relief. The Privacy Act, which the majority claims precludes
relief, is entirely inadequate and does not provide for the particular harm at
issue in this case. There is no indication in the Act itself or its legislative
history that Congress intended the Act to act as a per se bar to outside
remedies for constitutional claims.
Finally, there are no special factors counseling hesitation against a
judicial remedy. There are no established barriers that preclude relief based