Sunday, September 30, 2007

Mad Dog Murtha should testify.

Article from Politico is Wrong...

The following article was written by John Bresnahan from the Politico blog. He doesn't support Mad Dog in the post but does provide him cover by getting the issue completely wrong.

Federal judge orders Murtha to testify in Haditha defamation case

A federal judge has ordered Rep. Jack Murtha (D-Pa.) to testify in a defamation case related to the deaths of Iraqi civilians in the town of Haditha in 2005, according to the Associated Press.

Murtha, a former Marine. accused Marines of "cold-blooded murder and war crimes'' during the Haditha incident. Frank Wuterich, a Marine sergeant involved in the incident, has sued Murtha for libel and invasion of privacy over his comments.

According to AP, U.S. District Judge Rosemary M. Collyer wants Murtha to explain why he made this statement and any documents he has related to the incident.

From the AP: 'You're writing a very wide road for members of Congress to go to their home districts and say anything they choose about private persons and be able to do so without any liability. Are you sure you want to do that?'' Collyer said, adding later, ''How far can a congressman go and still be protected?"

Frankly, I don't understand this ruling at all, and I wouldn't be surprised if it is appealed by the Justice Dept. and/or House general counsel's office on behalf of Murtha. Murtha, who can say some inappropriate things once in a while, was clearly acting in his capacity as a lawmaker when he made the comments and is thus protected by the Speech or Debate Clause from any type of prosecution for official acts.

Therefore, this case should have been dismissed, and I hope it will be. It's not that I agree with what Murtha said. I don't know enough about the incident to have an opinion whether Wuterich or the other Marines did anything improper or illegal. But Murtha has a right to say what he did under the Speech or Debate Clause, even if he was wrong about what happened. When we start restricting what members and senators can say in the performance of their jobs, then we are really in trouble as a country.

Update: There is a lot of confusion on the Speech or Debate Clause among Crypt readers, lawmakers, lawyers, public officials and the world at large, so I will try to explain it a little bit.

The Speech or Debate Clause does not protect members, senators or staff from arrest for a crime, and I am not suggesting that it does. If a member of Congress were to rob a bank or steal a car, he or she can be arrested and prosecuted for that crime. They have no constitutional privilege shielding them from the law on that front.

In addition, a lawmaker could libel someone if he or she were acting as a private citizen. That is entirely possible. Say I am a car dealer who sells Congressman X a new car, but he is unhappy about his purchase. Congressman X holds a press conference to announce to the world that I am "a damned crook who steals from everyone I sell cars to or have any other dealings with," including my own mother. It is obvious that I can sue Congressman X for libel based on the fact that our interaction had nothing to do with his official duties as a member of Congress, but rather as Private Citizen X. He has no constitutional privilege there.

But what Murtha did was comment on an incident involving Wuterich and other Marines at a press conference and in a follow-up TV interview. These interviews were related to his opposition to the Iraq war. The courts have found that such press-related activities are a normal part of the duties of a member of Congress, and are therefore covered by the Speech or Debate Clause. Murtha did not have to be on the floor of the House making a speech in order to enjoy the protection of the Speech or Debate Clause. My apologies to the commenters who believe otherwise, but you are incorrect on that front. Read up on the case of former Rep. Cass Ballenger (R-N.C.) and his comments about a mosque near his home, and you'll see what I'm saying.

Update 2 - To those who commented that the Ballenger was dismissed on grounds other than Speech or Debate, you are right. I cited the Ballenger case as an example of how courts have ruled that a member giving a press conference or answering questions in a TV interview is considered within the scope of official duties of a lawmaker, not as an example of the Speech or Debate Clause. I should have made that clearer in my earlier comments.

In addition, Murtha said what he said about Haditha using information he received from Defense Dept. officials as the then ranking member of the Defense subcommittee of the House Appropriations Committee. This information was gleaned from his contacts inside the Pentagon, contacts he has made as a member of Congress for the last 35 years (Murtha was elected to the House in 1972).

Therefore. his comments are covered by the Speech or Debate Clause, and he cannot be charged with defaming Wuterich or anyone else. I am not saying Murtha is correct in what he said about Wuterich and his fellow Marines. I do not know whether his statement was accurate or not, and it would probably have been better if he'd never made ir. But Murtha clearly had the right to say it, and hopefully this decision will be overturned on appeal.

One final note -- Wuterich may end up standing trial soon over his role in the death of 17 Iraqi civilians in the Nov. 19, 2005, incident in Haditha. If he were to go on trial and be found guilty of some crime in that case, then this lawsuit against Murtha would go away as well. Truth is the ultimate defense against libel, as any first year law or journalism student knows. I am not saying it will happen, and Wuterich is innocent of any wrongdoing as far as I know. But if it does happen, his legal action against Murtha would disappear. And my guess is that Wuterich's fate will likely be decided before this lawsuit is resolved.

So, to restate what I said before, this is a very bad ruling by a judge who is clearly unfamiliar with how the Speech or Debate Clause works. I hope the decision is appealed by the Justice Dept. (which has represented Murtha in this lawsuit) or the House general counsel's office and overturned. It is a legally unsound precedent and should be reversed as soon as possible.

By John Bresnahan 05:53 PM

Here is the Clause in question as it appears in that Bothersome Document the Constitution.

Speech or Debate Clause in Article I, Section 6, Clause 1

United States Constitution, Article I, Section 6. The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. 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.

Mad Dog Murtha was NOT on the Floor of the House when his comments were made. This clause in NO WAY gives any member of Congress freedom from prosecution for liable or defamation of a soldier. He was in NO WAY performing ANY of his duties as a member of the House, unless we are willing to admit that a duty of a member of congress is to use raw privileged (probably classified) data to make a purely political attack on ANYONE that represents an opposing view of your party.

If anything this clause spells out exactly a reason to prosecute Murtha. Mad Dog with his statements and actions regarding the Marines involved in the Haditha incident is in Violation of "Breach of the Peace". Not only are his statements prosecutable but they very well could have incited attacks on those Marines and were used by the enemy to incite attacks on our other Military personnel.

Murtha should be tried and brought up on articles of impeachment for violating the very clause that he uses as his defense. Soldiers were attacked and died because of Mad Dog Murthas statements. Al-Qaeda used his words for recruitment. Murtha was also both Trying and Convicting these Marines in the court of public opinion, inciting his base to attack our soldiers as they did Vietnam Vets. That's a Breach of the Peace!


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