The Court of Appeals for the Federal Circuit in D.C. took another step Tuesday to immunize federal employees from lawsuits by citizens and exempt them from the basic American republican (small “r”) principle that no one is above the law. The ruling also leaves citizens without the equal protections provided by the Fourteenth Amendment. In addition, it reinforces the Orwellian concept that “all pigs are equal; some pigs are more equal than others” i.e., government officials.
The court’s decision involved a lawsuit brought by Staff Sergeant Frank Wuterich against Democratic Congressman John Murtha. The suit was filed in response to a remark made by Murtha at a press conference in May 2006 accusing Wuterich and his men of killing Iraqi civilians, including women and children, “in cold blood.” A Marine Corp inquiry later found Wuterich and his men had acted properly during a firefight on Nov. 19, 2005 in Haditha, Iraq in which two Marines were killed.
The Court found that Murtha could not be sued under the 1988 Westfall Act which gives federal employees immunity from lawsuits when acting in the course of their official duties. The Court’s ruling in this case seems to be improper both on legal and constitutional grounds. Under the Westfall Act, in order for immunity to be granted, the Attorney General, or his designee must issue a “scope certification” certifying that the “defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose….”
Also, under the Westfall Act, the plaintiff has the right to appeal the Attorney General’s scope certification. Furthermore, the Act does not grant immunity to the defendant, it transfers liability from the defendant to the government which still allows the plaintiff to get satisfaction in court for the injury incurred. In this case, it would appear that the fact that Murtha was a member of Congress was not incidental to the case. There is no job requirement that elected officials call press conferences to give their personal opinions on current events. That is purely a personal or political decision on the part of the individual involved.
The Constitution in Article One, Section Six provides limited immunity for Senators and Congressmen under very narrow circumstances.
“They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”
Just as Section 8 of Article I, limits the power of Congress by its specificity, Section 6 limits the legal immunity afforded members of Congress for the same reason. Under this Section, Legislators are immune from arrest only while in “attendance”. In other words, only while the Congress is in session and they would normally be in attendance. They are also immune from arrest while traveling to or from a session of Congress.
Section Six also provides that a member of Congress cannot be called to account regarding any speech or debate in either house. It is obvious that the reference here is to remarks made in the respective chambers, not in a TV studio or before a microphone at an outside press conference.
Aside from the violation of the “free republic” principle that all men are equally subject to the rule of law and equally entitled to its protections, this interpretation of the law has the potential of incrementally denying citizens any legal redress for actions committed by federal officials between election cycles, no matter how egregious. Under the present circumstances of one party rule and the obvious intent of the current administration to infringe on the liberties of citizens, this is a dangerous precedent.