Thursday, May 17, 2007

vice president cheney proclaims that all his words are beyond contestation -- i think NOT. . .


or, at least that's what his
lawyers said today -- in a d.c.
district courthouse. . .



[above on point 10-second
still from a clip, courtesy
of thinkprogress! click
the image to view the clip
over at their shop!]



UPDATED -- 05.18.07 a.m.

i fear i've buried my lede.
so here it is:

~~~~~~~~~~~~~~~~~~~~~~

the wilson lawsuit essentially asks
"was all of this -- or was this not -- a
policy of the united states government
?"

thus -- to my eye, at least -- adding
any press-pool-stenographers, or any other
private-party-actor to the long
list of defendants simply obscures
the central issue. the central claim
is that a "rogue" [or -- more damagingly,
a perhaps an authorized -- not-so rogue]
agent of the u.s. government violated the
wilsons' rights. among those rights is a
fourth amendment right to privacy, just
as mr. bivens' [see infra] fourth
amendment right to be free from an
unreasonable search -- and warrantless
arrest -- was violated by the narcotics
agents in bivens' case. . .

i think the wilsons have a decent chance
of either (a) succeeding because cheney
was a rogue -- or (b) losing, because
cheney was acting upon an implicit policy
that simply reflected this administration's
view of the united states as a military
bully-boy in the larger world. . .

as i type that, i think the wilsons
losing the civil suit might be the
most-damaging thing ever to happen
to this presidency
. it will flatly
equate bush-cheney-rove-rice-rumsfeld. . .

with

nixon-agnew-kissinger-erh-and-rumsfeld-cheney. . .

yes -- that's exactly right -- res ipsa. . .

~~~~~~~~~~~~~~~~~~~~~~

jane hamsher at firedoglake
set the table nicely here, for an
in-depth, skeptical analysis of
mr. cheney's claim of absolute
privilege in the civil bivens-style-
lawsuit valerie plame wilson and
ambassador joseph wilson have pend-
ing against mr. cheney (among many
others). almost astonishingly,
mr. cheney's lawyer at the DoJ, one
jeffrey s. bucholtz, responded "yes",
to the following query from judge
john d. bates:
". . .So you're arguing
there is nothing — absolutely
nothing
— these officials
[mr. cheney among them] could have
said to reporters that would have
been beyond the scope of their
employment [whether it was] true
or false?"

this demands an answer. we are not
a monarchy -- there is no absolute
immunity for our elected
officials.

let's get right to that answer, then:

mr. cheney relies most-heavily on
a case involving the actions of henry
kissinger to make his extraordinary
claim of unlimited privilege. we'll
get to that in a moment, but first, let's
review the united states supreme
court's most authoritative word on the
subject -- baker v. carr:
. . .We have said that "In determining whether a question falls within [the political question] category, the approriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations." Coleman v. Miller, 307 U.S. 433, 454-455. The nonjusticiability of a political question is primarily a function of the separation of powers. Much confusion results from the capacity of the "political question" label to obscure the need for case-by-case inquiry. . . To demonstrate this requires no less than to analyze representative cases and to infer from them the analytical threads that make up the political question doctrine. We shall then show that none of those threads catches this case.

Foreign relations: There are sweeping statements to the effect that all questions touching foreign relations are political questions. Not only does resolution of such issues frequently turn on standards that defy judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature; but many such questions uniquely demand single-voiced statement of the Government's views. Yet it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. Our cases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action. . .

Prominent on the surface of any case held to involve a political question is found a [1] textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment of multifarious pronouncements by various departments on one question. . .

none of these six factors seem directly
implicated by a decision -- in violation
of u.s. law -- as to a u.s. citizen, and
c.i.a. covert-agent, to leak her true
identity to the press for the alleged
purpose of partisan retribution -- and,
this is critical -- against her
husband
, who was a diplomatic-
part of that same administration. . .

now, it is plain -- as counsel for the
wilsons have cogently argued -- that no
lawful foreign policy consideration
can possibly support the disclosure of
a covert-c.i.a.-asset's true-identity.

in fact, the president himself had indicated
he would fire anyone found to have done so. . .
and, he referred to it as a "violation of the law. . ."

i suppose now, unless it is a false-disclosure
(i.e., a "disinformation-cover" for another
lawful operation, and to protect the asset),
the release of such information is -- yes -- a felony. and, if committed
during war-time, it is
a death-eligible offense. i point
this out, just for the record, to
make clear how seriously our system
of ordered liberty, and our nation
of laws, takes mr. cheney's alleged
acts against the wilsons. . .

now, mr. cheney's lawyers claim that the
federal appeals court case of schneider v
kissinger
provides an absolute bar
to the wilsons' recovery.

three premliminary notes -- first,
schneider's case was not filed as a bivens-
type
-action -- that route is
only available to u.s. citizens (as
it is premised on 14th amendment
"equal protection" of u.s. law
claims). next, schneider's family
sued under the FTCA -- as it was
their only viable option to procure
u.s. jurisdiction. as citizens, juris-
diction is little barrier to the wilsons.
armed with bivens, they need not,
and do not, rely solely on FTCA claims.
finally, mr. bush has indicated that
it is NOT u.s. policy to out c.i.a.
assets for political retribution -- he
said he would fire anyone who did, and
in doing so, said they would have violated the law. . .

okay -- so now, lets take a look, shall we?

. . .[Schneider's family] sought to hold the United States and Dr. Kissinger liable for the attempted kidnaping and death of General Schneider [a citizen of Chile] under various U.S. laws and treaties. . .

The defendants move[d] to dismiss, arguing that the political question doctrine renders non-justiciable all of the plaintiffs’ claims; that sovereign immunity bars the claims against the United States; and that the amended complaint fails to state a cognizable claim against Dr. Kissinger, in part because of substitution under the FTCA. The plaintiffs counter that the political question doctrine is inapplicable to mere torts claims. . . and that Dr. Kissinger was not acting within the scope of his employment when he allegedly committed the torts at issue and is not entitled to qualified immunity. . .


the statement of the case really
tells it all, here -- the plaintiff
was not a u.s. citizen, he was the
commanding general of the chilean
army -- he refused to order a military
intervention in elections; thus he was
shot during an attempted kidnapping.
mr. kissinger did not personally
direct his kidnap or shooting;
there was a nixon-ian u.s. policy to
cause a regime change in chile
;
so far as we know, there was NO u.s.
policy to forge evidence of WMDs;
there was NO u.s. policy requiring
the outing of c.i.a. assets as "fair"
retaliation for their spouses' dissent
from u.s. pronouncements
. . .

and on, and on, and on. . .

there is simply no legitimate foreign
policy interest in retaliating -- in
an entirely unlawful fashion -- against
a u.s. citizen, and c.i.a. covert asset,
in order to discredit her husband's
criticism of the forged evidence mr.
cheney may have had a hand
in procuring -- albeit an unlawful,
beyond u.s. policy-endorsed trump
hand -- and that is important, because mr.
cheney cannot be heard to say that it was
u.s. policy to send our troops to fight
a war based on his allegedly having
cooked the case for that war, personally.

now let's take a look at the facts in
the bivens case, again the seminal case on
recovering for abuse personally caused by
government agents while acting under color
of authority
. that last bit is, again,
critical -- as we shall see, the officers in
bivens acted lawlessly, but asserted that
the acts were under color of authority. bivens:
. . .[federal agents,] acting under claim of federal authority, entered [bivens'] apartment and arrested him for alleged narcotics violations. The agents manacled petitioner in front of his wife and children, and threatened to arrest the entire family. They searched the apartment from stem to stern. Thereafter, petitioner was taken to the federal courthouse in Brooklyn, where he was interrogated, booked, and subjected to a visual strip search.

On July 7, 1967, petitioner brought suit in Federal District Court. In addition to the allegations above, his complaint asserted that the arrest and search were effected without a warrant, and that unreasonable force was employed in making the arrest; fairly read, it alleges as well that the arrest was made without probable cause. . .

there will be more. perhaps in a new post.

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nolo said...
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