Last Tuesday, a Federal Appeals Court upheld the dismissal of Valerie Plame's lawsuit against those who revealed her identity, setting a dangerous precedent that goes beyond even the "Nuremberg Defense." The specific case involved is of course politically volatile, but the specific parties are less the victims than is the Rule of Law, itself.
Government employees who engage in questionable acts, such as abusing prisoners at the Guantanamo Bay facility or engaging in defamatory speech, cannot be held individually liable if they are carrying out official duties, the court said.
"The conduct, then, was in the defendants' scope of employment regardless of whether it was unlawful or contrary to the national security of the United States," Appeals Court Chief Judge David Sentelle wrote in the opinion.
At Nuremberg, former Nazi officials claimed that they were just following orders, and were thus not liable for the attempted extermination of European Jews and other atrocities, but this decision goes beyond even that defense, claiming that any action, ordered or not, performed while in office is beyond punishment. The consequence of such a decision should be immediately apparent. Here, federal judges state in clear terms that the law does not apply to government officials. There is nothing inherent in the decision which would preclude murder or random imprisonment of selected demographic groups or any other number of crimes, so long as the perpetrator currently held office. Indeed, under the decision, Holocaust would not be a punishable offense.
What one may think of Plame and her husband -- granting that the fact that Joseph Wilson was telling the truth apparently means less to some than that he opposed the invasion of Iraq -- all should be fearful of the grounds on which the case was thrown out. Far from manipulating the typical "standing" argument used to throw most cases out, the judges stretched the entire body of American law to the breaking point, making it almost unrecognizable, and surely inapplicable in the corridors of power.
Examining the Judge writing the opinion, Judge David Sentelle, leaves no doubt as to where his loyalties lie (hint: it's not with the Constitution). A Regan appointee, mentored by Jesse Helms, and a favorite of the Federalist Society, Sentelle has a long history of siding with individual conservatives in lieu of interpreting the law as written.
On the DC Court of Appeals, Sentelle voted to overturn the convictions of Oliver North and John Poindexter. He was also a cog in the push to replace Robert Fiske with the more aggressive Kenneth Starr, indicating that perhaps he sometimes thinks the law applies to government officials, should they be members of the right party. In 2007, Sentelle voted to pretend that the Constitutional clause guaranteeing habeas corpus simply didn't exist, or at least need not be applied if the Chief Executive so wishes.
What is clear is that the specific parties in this case have been allowed to trump the rule of law. Exacting vengeance on a political opponent has been lifted above upholding legal precedent. Indeed a new precedent has been set in the process, one that goes well beyond even the defense used at Nuremberg and looms ominously over the future of the Constitution.
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