We also cannot ignore that, if we were to create a Bivens remedy, the litigation of the allegations in the amended complaint would inevitably require judicial intrusion into matters of national security and sensitive intelligence information. The decision of whether to create a Bivens remedy involves our judgment and “weighing [of] reasons for and against the creation of a new cause of action, the way common law judges have always done.” Wilkie, 127 S. Ct. at 2600. Pertinent to that judgment are the difficulties associated with subjecting allegations involving CIA operations and covert operatives to judicial and public scrutiny. . .This is the right result. For the most part, the Plame/Wilson allegations are "political questions" inappropriate for courts, but best settled via elections.
As the Supreme Court has recognized, “‘[e]ven a small chance that some court will order disclosure of a source’s identity could well impair intelligence gathering and cause sources to “close up like a clam.”’” Id. at 11 (quoting CIA v. Sims, 471 U.S. 159, 175 (1985)). We will not create a cause of action that provides that opportunity.
Litigation of the Wilsons’ allegations would inevitably require an inquiry into “classified information that may undermine ongoing covert operations.” See Tenet, 544 U.S. at 11. The amended complaint alleges that the disclosure of Valerie Plame Wilson’s identity “impaired . . . her ability to carry out her duties at the CIA,” Am. Compl. ¶ 43, increased the risk of violence to her and her family, id. at ¶ 42, and subjected her to treatment different from that given other similarly situated agents, id. at ¶¶ 51–52. We certainly must hesitate before we allow a judicial inquiry into these allegations that implicate the job risks and responsibilities of covert CIA agents. In cases involving covert espionage agreements, “[t]he state secrets privilege and the more frequent use of in camera judicial proceedings simply cannot provide the absolute protection [the Court] found necessary in enunciating the Totten rule.” Tenet, 544 U.S. at 11. Here, although Totten does not bar the suit, the concerns justifying the Totten doctrine provide further support for our decision that a Bivens cause of action is not warranted.
Thursday, August 14, 2008
Ding Dong, the Witch is Dead
On Tuesday, the United States Court of Appeals for the District of Columbia Circuit affirmed the dismissal of Valerie Plame's damage suit against Vice President Cheney, former Cheney Chief of Staff Scooter Libby and former Deputy Secretary of State Richard Armitage. The majority opinion, written by Judge Scentelle, says (at pages 18-20):