Several years ago, I was talking to a Democratic senator on the intelligence committee about the CIA leak case. I asked if Democrats had any intention of pushing for a congressional investigation of the administration leak that appeared in Robert Novak’s column and that outed Valerie Wilson as a CIA operative. The senator noted that a special counsel (Patrick Fitzgerald) was already on the case. That’s true, I said, adding that it was not Fitzgerald’s job to tell the public about his findings. His task was to investigate (secretly) a crime and then mount a prosecution if he could. Any information he would unearth would only become public were he to mention it in an indictment or a subsequent prosecution. He would not be issuing any report. And at the end of Fitzgerald’s inquiry, I said to the senator, there might no prosecution (or merely a limited prosecution) and that the public might not learn all there was to know about the case. So, I asked this legislator, if Democrats cared about the leak, shouldn’t they push for a non-criminal investigation? The senator replied in an exasperated manner: “You want us to investigate everything?”
Well, why not? But it was clear he wasn’t interested in a congressional probe of the CIA leak case. Nor were many other Capitol Hill Democrats. Many were satisfied by the Fitzgerald appointment. But after investigating the case for over two years, Fitzgerald, has only indicted one Bush official, I. Lewis “Scooter” Libby, and that was not for the leak but for lying to the FBI and Fitzgerald’s grand jury. (Libby disclosed Valerie Wilson’s employment at the CIA to New York Times reporter Judy Miller and confirmed it for Time correspondent Matt Cooper.) In the course of the indictment and pretrial process, Fitzgerald has made some critical information available–such as the fact that it was Cheney who first told Libby that Valerie Wilson worked at the CIA’s Counterproliferation Division, a unit in the agency’s clandestine operations directorate. But Fitzgerald has not–and cannot under Justice Department guidelines–share all that he knows about the leak with the public. Thus, much of the story remains untold. And George W. Bush and his White House still refuse to answer any questions about the leak case, continuing a stonewalling strategy that has served them well.
Enter a new lawsuit. On Friday, Valerie and Joseph Wilson filed a lawsuit against Cheney, Libby and Karl Rove. (Prior to the Novak column, Rove leaked information about Wilson’s classified employment to Time correspondent Matt Cooper; he also confirmed this information for Novak. Fitzgerald, though, was not able to bring a criminal case against him.) In the suit, the Wilsons accuse the three Bush officials–and unnamed coconspirators–of having violated their various rights, such as Valerie Wilson’s privacy rights and Joe Wilson’s right to express his opinions, which he did in a New York Times op-ed piece that criticized the Bush administration’s Iraq policy. That article led White House officials to assail him.
The lawsuit is based on the Bivens case, in which a man named Webster Bivens was arrested in 1965 by agents of the Federal Bureau of Narcotics. He later sued, complaining that the agents had searched his home and arrested him without a warrant and that he had suffered humiliation and mental suffering as a result. He argued that he could directly sue the narcs to remedy an unconstitutional invasion of his privacy rights. The Justice Department, representing the six unnamed narcotics agents, argued that Bivens had no right to bring a federal claim and could only initiate a tort action in a state court. A federal district court and then a federal appeals court tossed out his suit. But in 1971, the Supreme Court reversed those decisions. Writing for the majority, Justice William Brennan declared this sort of lawsuit was needed to check a federal official who was “unconstitutionally exercising his authority.”
I’m no lawyer–though I occasionally play one on television–and cannot comment on whether Rove secretly sharing classified information with Cooper (or Libby doing the same with Miller) is the legal (and constitutional) equivalent of narcs busting into someone’s home, throwing him into manacles in front of his wife and children, threatening to arrest the entire family, and searching the entire apartment, all without a warrant. And if Joe or Valerie Wilson had asked my advice, I might have suggested that they skip the suit, so Valerie Wilson can focus on writing her I-was-a-suburban-mom-spy memoirs–which is sure to land her on Oprah’s couch, the bestsellers list, and (probably) a movie screen. (Angelina Jolie playing a real-life Mrs. Smith?)
But if the Wilsons can get their lawsuit to the discovery stage–and that might be a big if–they will be able to take depositions and demand documents from their targets and others. (Will they go after journalists?) Such action could yield information beyond what Fitzgerald has disclosed to the public. A private lawsuit is often an imperfect device to dig out the full story of any controversy. But this one is a reminder that the public has not yet received a full and official accounting of the leak case.