Friday, August 04, 2006

Loose Lips, Libelous Latitude?

Continuing on the marketplace of ideas theme of a previous post, I want to mention the complaint filed August 2 against Congressman John Murtha (D - PA) by Staff Sergeant Frank Wuterich. SSgt. Wuterich is one of the Marines Murtha has accused of “killing innocent civilians in cold blood” in an incident at Haditha in Iraq, which occurred on November 19, 2005. SSgt. Wuterich denies this accusation, and he is going beyond that to file a civil action against Murtha in the District of Columbia for libel.

Neal Puckett, who is of counsel in this litigation, recently provided me with a copy of the complaint. His website can be found here: Puckett, a retired Lt. Col. (USMC), former military judge and now superlawyer, has represented other high-profile military clients, including Army Lt. Col. Allen B West, who was accused of improper interrogation tactics against an Iraqi captive. A story about West can be found here: (He has also taught Military Law here at the Creighton Law School as an adjunct faculty member.)

This case is also capturing headlines, as a soldier accused of wrongdoing strikes back at those who seek to convict him in the media without the benefit of knowledge of what really happened.

It is a great country where people can speak freely. But you must also speak responsibly. In this case, the court will use libel law to sort out whether Murtha has crossed the line. Murtha has been a strident critic of the war effort, and he has chosen to state conclusions about not only the facts of the incident, but also an alleged cover-up of those facts, without the benefit of the results from pending investigations by appropriate authorities. In doing so, he damages the reputation of soldiers entitled to the presumption of innocence.

The complaint contains an extensive statement of facts as alleged by SSgt Wuterich, which provide a story that involves unfortunate and accidental deaths of civilians in the course of a horrific sequence of events in which our troops were in great peril. If true, these facts show honorable conduct, not war crimes.

Murtha, however, claims otherwise. One of his statements, made on the NBC Nightly News with Brian Williams, states flatly: “There was no firefight. There was no IED that killed these innocent people. Our troops overreacted because of the pressure on them, and they killed innocent civilians in cold blood.” (Complaint, ¶ 41). He also compares this incident to My Lai in Vietnam, differing only in the number of deaths (24 vs. 124).

Was Murtha with the troops? No sir. Murtha claims to have received some of his putative knowledge from briefings he received from Commandant of the Marine Corps, but he specifically stated that he did not speak with military investigators. But these briefings, which are presumably not for public consumption, were also made prior to the completion of any investigation. Murtha also read a Time magazine article on the incident. (And that is supposed to make me feel more confident because ….? ). Further, it is now known that the Commandant briefed Murtha a full week after he made his press conference allegations on May 17th.

Murtha will likely claim he is immune from such claims owing to his position as a Congressman. However, the Supreme Court’s decision in Hutchinson v. Proxmire, 443 U.S. 111 (1979), appears to suggest otherwise.
In Proxmire, the Court found a libel claim by a scientist awarded the “Golden Fleece” award by Senator William Proxmire was outside the scope of privilege. Proxmire (whom I always admired for his attention to government funding foibles – most of which were spot on) had published statements about this scientist in other forums beside the Senate, and in this case the court found no basis for cloaking such statements in the privilege attached to legislative functions. The court stated in part:
“A speech by Proxmire in the Senate would be wholly immune and would be available to other Members of Congress and the public in the Congressional Record. But neither the newsletters nor the press release was "essential to the deliberations of the Senate" and neither was part of the deliberative process.” Id. at 130. Aspects of the public figure standard for libel may also be raised here, but the scientist libeled by Proxmire was not considered a public figure.

In short, you cannot use the cloak of office to protect you from libelous statements made in press conferences and elsewhere. It will be interesting to see this case unfold and to see how our elected officials respond to claims about their prerogatives in politics. Political debate is one thing, but there are real people on the other side of these allegations. Congressman Murtha is not a prosecutor; it is not his job to try these men or to impose a sentence.

Readers interested in providing financial support to our soldiers for legal defense when accused in situations like this one may also wish to visit this site. .
Let’s hope that justice is done for their sake, and for the sake of all of us who depend on men and women of integrity in our military.


No comments: