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COMMENTS ALL THE VICE PRESIDENT’S MEN: HOW THE COURT IN
WILSON V.  LIBBY
MISINTERPRETED THE PRIVACY ACT AND DENIED A REMEDY FOR THE ILLEGAL DISCLOSURE OF VALERIE PLAME WILSON’S COVERT CIA IDENTITY
 Kristin I. Oickle
*
 
Abstract:
On July 14, 2003, Robert Novak’s weekly column dismissed Joe Wilson’s 2002 report for the CIA, which concluded that an Iraqi purchase of nuclear material was highly unlikely. According to Novak, Wilson’s report was considered insignificant, and neither the President of the United States nor the Director of the CIA ever saw the report before American soldiers were sent to Iraq in 2003. Wilson, a former diplomat, had only been put up for the low-level mission due to his wife, Valerie Plame Wilson, a CIA operative. To most reading Novak’s column in the Monday morning edition of the Washington Post, the reference to Ms. Wilson was fleeting and hardly noticeable. But to Ms. Wilson, her husband, and the CIA, the significance was both immediately apparent and devastating. Ms. Wilson’s status as a covert CIA agent was confidential, and revealing her identity destroyed her career, put her and her family in danger, and compromised important U.S. intelligence.
 
In a subsequent civil suit against federal officials for constitutional violations and tortious invasion of privacy, the U.S. Court of Appeals for the District of Columbia denied the Wilsons any remedy. After examining the availability
*
 Candidate for Juris Doctor, New England School of Law (2010). B.A., Political Science, Stonehill College (2006). Special thanks to my parents, Terry and Janell Bauer, Justin Vartanian, Darrell and Jayne Vartanian, and Kelly Wyand for their support through this  process. This article is dedicated to my first editor, my father, the late M. Scott Oickle.
 
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 NEW ENGLAND LAW REVIEW 
 [Vol. 44:971
of relief under the Privacy Act and
 Bivens
, this Comment argues that the majority misconstrued precedent relating to
 Bivens
, as well as the purpose and extent of the Privacy Act. In refusing to afford the Wilsons any judicial remedy for the violation of vested legal rights, the court wrongfully denied the Wilsons the essential protection of the laws.
I
 NTRODUCTION
 In the landmark case
 Marbury v. Madison
,
1
 Chief Justice John Marshall declared: “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that  protection.”
2
 He went on to say, “[t]he government of the United States has  been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.”
3
 Valerie Plame Wilson and her husband Joe Wilson filed a civil suit against federal officials for alleged constitutional violations and tortious invasion of privacy, but they were denied any remedy by the U.S. Court of Appeals for the District of Columbia.
4
 The suit stemmed from a newspaper article written by Robert Novak that destroyed Ms. Wilson’s covert status as an agent with the Central Intelligence Agency (“CIA”).
5
 Ms. Wilson alleged that her identity was obtained by Mr. Novak through leaks from the White House.
6
 She further alleged that the White House leaked this information to several reporters as retaliation for her husband speaking out against the George W. Bush Administration in an Op-Ed piece.
7
 Specifically, Mr. Wilson, a retired diplomat who had gone to Africa on a fact-finding mission, asserted that in an attempt to sell the Iraq War to the American people, the Bush Administration falsely claimed Saddam Hussein had sought major quantities of uranium from Africa.
8
 Shortly thereafter, Mr. Novak’s article was published.
9
 The named officials
1
. 5 U.S. (1 Cranch) 137 (1803).
2
. Id.
 at 163.
3
. Id.
 
4
. See
Wilson v. Libby, 535 F.3d 697, 710-11 (D.C. Cir. 2008).
5
. See
Robert D. Novak,
 Mission to Niger 
, W
ASH
.
 
P
OST
,
 
July 14, 2003, http://www.washingtonpost.com/wp-dyn/content/article/2005/10/20/AR2005102000 874.html.
6
. See
Amended Complaint at 2, Wilson v. Libby, 535 F.3d 697 (D.C. Cir. 2008) (No. 06-1258) [hereinafter Amended Complaint].
7
. See id.
 
8
. See
Joseph C. Wilson IV, Op-Ed.,
What I Didn’t Find in Africa
, N.Y.
 
T
IMES
,
 
July 6, 2003, § 4, at 9,
available at
http://www.nytimes.com/2003/07/06/opinion/06WILS.html.
9
. Amended Complaint,
 supra
note 6, at 2.
 
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WILSON V. LIBBY 
 973 allegedly responsible for the disclosure of Ms. Wilson’s classified status included former Vice President Richard B. Cheney, former Senior Advisor to the President Karl C. Rove, former Assistant to the President and Chief of Staff to the Vice President I. Lewis “Scooter” Libby, Jr., and former Deputy Secretary of State Richard L. Armitage.
10
 In a resulting criminal case, Libby was convicted of four counts of  perjury, obstruction of justice, and making false statements, and was acquitted of one count of making false statements.
11
 No one has been formally charged with illegally leaking Ms. Wilson’s identity.
12
 In their civil suit, the Wilsons claimed that the actions of the above-named officials violated the U.S. Constitution and that they should be afforded relief under
 Bivens v.
 
Six Unknown Named Agents of Federal  Bureau of Narcotics
.
13
 Specifically, the Wilsons alleged that disclosure of Ms. Wilson’s identity resulted in a violation of Mr. Wilson’s First Amendment right to free speech, denied both of them equal protection of the laws, and further violated Ms. Wilson’s Fifth Amendment rights to  privacy and property.
14
 In
 Bivens
, the Supreme Court held
 
that damages may be obtained for injuries resulting from constitutional violations by federal officials.
15
 In determining whether a
 Bivens
remedy is appropriate, the court must conduct a two-step inquiry.
16
 First, it must determine “whether any
10
. Wilson v. Libby, 535 F.3d 697, 701 (D.C. Cir. 2008). Karl Rove, Richard Armitage, and Scooter Libby have since been identified as the sources who provided Ms. Wilson’s identity to reporters.
See
Robert Novak,
 My Role in the Valerie Plame Leak Story
, H
UMAN
E
VENTS
,
 
July 7, 2006, http://www.humanevents.com/article.php?id=15988; Joel Seidman,
 Plame Was ‘Covert’ Agent at Time of Name Leak 
, MSNBC,
 
May 29, 2007, http://www. msnbc.msn.com/id/18924679/.
11
. See
United States v. Libby, 498 F. Supp. 2d 1, 2 (D.D.C. 2007).
12
. Seidman,
 supra
note 10. Following a request from the Citizens for Responsibility and Ethics, a federal judge recently ordered the release of Vice President Cheney’s interview regarding the leak. Associated Press,
 Judge Orders FBI to Release Cheney  Interview in Leak Case
, F
OX
 N
EWS
, Oct. 1, 2009, http://www.foxnews.com/  politics/2009/10/01/judge-orders-fbi-release-cheney-interview-leak-case/?test=latestnews. Cheney was unable to recall any key information, including whether he discussed Ms. Wilson with Libby prior to Novak’s article, despite evidence at Libby’s trial that indicated that Cheney had discussed Ms. Wilson with Libby one month prior to the article. Associated Press,
Cheney Told FBI No Idea Who Leaked Plame ID
, MSNBC, Oct. 30, 2009, http://www.msnbc.msn.com/id/33556198/ns/politics-more_politics/.
13
. See Wilson
, 535 F.3d at 702.
14
. Id.
 at 703.
15
. See
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971).
16
. Wilson
, 535 F.3d at 714 (Rogers, J., concurring and dissenting) (citing Wilkie v. Robbins, 551 U.S. 537, 550 (2007)).

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