A lawsuit charging Rep. John Murtha (D-Pa.) with libel and invasion of privacy over his comments about an alleged massacre of Iraqi civilians by U.S. Marines last year is likely to be dismissed under the Federal Tort Claims Act, a law that protects lawmakers from being sued for actions related to their official duties, according to a leading expert on the law.
Marine Staff Sgt. Frank Wuterich sued Murtha on Aug. 2, charging that Murtha has “publicly and falsely accused” the Marines involved in the Nov. 19 incident of “cold-blooded murder and war crimes” without factual evidence to support the claim. In the incident, 24 Iraqi civilians died, and U.S. military officials are investigating whether the Marine unit that Wuterich belonged to killed the Iraqis as revenge for the death of one of their own comrades.
Wuterich also alleged in his lawsuit that the comments by the Pennsylvania Democrat — who has become a leading hawk-turned-critic of the Iraq war — were “outside of Mr. Murtha’s scope of employment as a Congressman.”
But Jeffrey Axelrad, a leading expert on the FTCA, said the suit has no chance of succeeding.
“This case is likely to be dismissed,” said Axelrad, who ran the FTCA office at the Justice Department for more than 25 years. Axelrad, now a professional lecturer in law at George Washington University Law School, called Wuterich’s lawsuit “very dubious.”
Mark Zaid, Wuterich’s attorney, acknowledged that winning a libel lawsuit against Murtha would be “a long shot at best” due to the protections afforded Murtha under the FTCA.
“I absolutely agree — [it is] a very, very difficult case,” Zaid said in an interview last week. “Any case against the U.S. government or an official of the U.S. government already starts with a loss for the plaintiff.”
Zaid, however, alleges that Murtha is using the notoriety of the Haditha incident to buttress his criticism of the Bush administration’s policy in Iraq with an eye toward running for Majority Leader if Democrats win control of the House in November. Murtha suspended his campaign for the leadership post in June, shortly after it publicly was unveiled.
Zaid argues that Murtha was seeking to advance “a personal, private interest” in commenting about Haditha — meaning his aspirations to become Majority Leader — and that Murtha’s statement therefore falls outside the FTCA.
“There was no need, no reason, no basis for [Murtha] to go and say, ‘They’re war criminals, they murdered these people, they’re untrained, they were never fired upon,’ when he doesn’t know what the evidence is,” Zaid said.
Zaid sent a letter to Murtha on Aug. 4 offering to withdraw the suit if Murtha issued a public apology to Wuterich. Zaid’s offer expired on Aug. 11, and as of press time, Murtha had not contacted Zaid.
Under the 1946 FTCA, the federal government covers liability claims for negligent and wrongful acts committed by government employees or officials, provided that they are acting within the scope of their official duties. The law was broadened in 1988 to include lawmakers and judges.
The Justice Department must certify that the individual in question was in fact performing official duties when the action occurred. The answer often varies because each state has different interpretations of what falls within the scope of employment. In this case, District of Columbia employment law would be used to determine whether Murtha’s comments were covered by the FTCA.
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