July 19, 2006

"Cheney should use this as a teaching moment."

Lawprof Akhil Reed Amar wants Dick Cheney to argue free speech, not official immunity, to win the lawsuit brought by Valerie Plame. To argue immunity is to snuggle up alongside of Richard Nixon in the case law:
Wouldn't it make more sense for him to position himself in the lawbooks alongside John Peter Zenger?

... Cheney should use this as a teaching moment, to explain how a proper understanding of First Amendment principles actually supports him and not the Wilsons, who have claimed that Cheney violated their free-expression rights. The result would be an elegant First Amendment jujitsu, using all the Wilsons' free-press momentum against them, to defeat their lawsuits.

Here is the key fact that Cheney should stress: Unlike Nixon, who fired a government whistle-blower, Cheney did not fire the Wilsons. He merely spoke out against them. True, he did so furtively, in what many might view as an underhanded whispering campaign. But the First Amendment protects a wide variety of speech and expression, encompassing the right to print, orate, and yes, to whisper—even to whisper anonymously and with petty or partisan motivation.

And to whom were Cheney and his fellow defendants whispering? To the press! This is the other key fact for the New Dick Cheney—the Zorro/Zenger Defender of the First Amendment. The Wilsons claim that they were being punished for speaking out against Cheney and the administration. But if the Wilsons have a right to criticize Cheney in the press, Cheney can claim that he has an equal right to criticize the Wilsons when talking to the press, whether on the record or off....

[R]ather than hiding behind the claim that he, like the president, is somehow above the law, Cheney should assert that he—like any ordinary citizen!—has a legally protected right to speak to the press.
Nicely put. Read the whole thing. Amar hasn't convinced me that Cheney ought to set aside the strong defense of immunity and only make the free speech argument. Immunity is an important tool for fending off the many lawsuits that would otherwise be aimed at the individuals who undertake public service. Just because Nixon was involved in using this defense doesn't mean it's sleazy (even assuming you think Nixon is sleazy). Should you have to worry about making a free speech defense because Larry Flynt is unsavory?

But I do like the First Amendment argument. The fact is Joe Wilson made a harsh attack on the administration, and we ought to want to know who he is, in context. There is other law to protect national interests from those who would disclose government secrets. A vigorous inquiry was made into whether that law was violated, and it came up dry. This is a tort suit, and anyone who is rooting for Plame -- feeling the old anti-administration blood lust -- ought to try to calm down for a few minutes and think about the broader picture. Do you really want to intimidate people into silence this way?

37 comments:

Marghlar said...

There is other law to protect national interests from those who would disclose government secrets. A vigorous inquiry was made into whether that law was violated, and it came up dry. This is a tort suit, and anyone who is rooting for Plame -- feeling the old anti-administration blood lust -- ought to try to calm down for a few minutes and think about the broader picture. Do you really want to intimidate people into silence this way?

I'm not hugely worried about this issue, but I do think that paragraph is a little misleading. After all, there are vastly different standards for criminal indictments as opposed to tort liability. A prosecutor should decline to prosecute a case if he thinks the defendant probably did it, but there is still reasonable doubt. Tort liability is a lesser measure for redressing such situations.

I don't know much about the underlying substantive law of outing an undercover agent, but I don't think we can confidently assert that the law was not broken, merely on the basis of a decision not to prosecute.

Whether Cheney or his subordinates'
conduct actually harmed Ms. Plame is another question entirely.

Brent said...

Though I am not an attorney, I have a bad feeling about how this lawsuit is going to turn out for the Wilsons. Every law commentator I have seen, from all sides of the political spectrum, doesn't give the Wilsons much chance of winning anything.

It makes you wonder if they are socially inept. As if, say, they believe that their social standing and friendships can only be maintained via this course.

It just seems sad. If they truly believe in their "cause", shouldn't they choose to live with the knowledge that history, even short-term history, may prove them right?

Disclaimer: I do not believe the Wilsons are correct at all, not even from the beginning of this affair. Its just that I actually feel sorry for them now - something I didn't think that i would ever feel. . .

Ann Althouse said...

"Tort liability is a lesser measure for redressing such situations."

Yeah, but you have to look at the negatives there. Tort plaintiffs are self-interested. They can be looking for money, discovery, publicity, revenge, etc. Why would you want to empower plaintiffs to bring tort claims against people who have engaged in free speech? We already have libel law. You like tort claims about how someone's reputation was hurt because someone brought out true facts about them? Amar discusses this in his article.

Ann Althouse said...

Brent: I think they are basking in the limelight and being toasted by the opponents of the administration. Find someone sadder to feel sorry for.

Patrick Martin said...

That argument looks like a trap, to me. The vice-president is not careless enough to be sucked into making an argument which would give a defense to the NSA and SWIFT leakers at the same time. As marghlar correctly points out, Fitzgerald's decision not to prosecute does not mean that it was legal to leak Plame's name (I think it probably was legal, but that's another argument). Defending what will surely be characterized, at least, as an illegal leak on First Amendment grounds would set a precedent for allowing all government employees a First Amendment right to disclose classified material. Cheney wasn't born yesterday...

Ann Althouse said...

Patrick: I thought about that as I was writing this post, but the key thing seems to be that it wasn't illegal.

SteveR said...

Either way, Cheney seems the least likely person to care about this sort of issue.

Marghlar said...

Ann, I didn't say I am a big fan of these type of tort suits. What I did say, and what I think you skip over, is that a failure to return an indictment, by itself, doesn't mean the law was followed. Absence of proof beyond a reasonable doubt is not equivalent with probable innocence.

Since none of us has done the legal research required to determine whether Cheney violated the law (nor do any of us have access to all the facts necessary to make such a determination, probablY), it is a bit premature to boldly claim that he did not, just on the basis of Fitzgerald's decision.

Ann Althouse said...

Marghlar: I didn't miss that point. Obviously, it's true that the standard of proof is higher for criminal law than for tort law. My point stands, however. I see the negative side of tort suits like this. I like the higher standard and am saying that the failure to meet it -- as judged by a publicly accountable institution (the prosecutor) -- is the best place to end this controversy, in the interest of the free flow of information to the citizenry.

Ann Althouse said...

Stever: Often those who assert rights are not people who've shown respect for rights. Look at all the criminal defendants, often sociopaths and violent brutes, who assert the most important right.

The question isn't whether Cheney is an admirable man, but what is in the broader public interest. I'm coming down on the side of free speech values, rather than tort plaintiffs with their big bag of self-interest.

Cheney has self-interest too, of course. But let's step back and not analyze this based on which party is the good guy and which is the bad guy. Let's look at who wins and loses in the broader society. Are tort suits like this in the public interest? I'm saying no.

Joe R. said...

As a self-labeled liberal (without any formal legal training), the free speech arguemnent seems very persuasive to me. Bush and Cheney still strike me as vindicative and somewhat pathetic for having released this information, but, unless the Wilsons can prove some sort of untruth, they shouldn't be in court. Besides, this really is starting to become quite boring.

SteveR said...

Oh I definetely agree with you, I just don't think you can appeal to his desire not to be lumped with Nixon hiding behind immunity. As a matter of principle, I'd want him to fight based on free speech given he did nothing illegal.

Marghlar said...

Stever: If, in fact, he did nothing illegal, then he needn't reference free speech. He can just stand on the fact that he did nothing illegal.

Ann: I don't actually disagree with you regarding the desire to have a high standard of tort liability (as opposed to allowing preponderance proof of speech torts) as a way of allowing a lot of space for communication. But I think that is a different question than whether the law was actually violated. That's the only thing I was quibbling with.

I have little sympathy with either Cheney or Plame in this situation.

knoxgirl said...

His defense should be that Joe and Valerie are simply too cheesey--and Vanity Fair whores to boot--to be believed.

knoxgirl said...

Seriously, after that spread in VF... there's not much worse. That rag is so wrong. It's like some mutant cross between Page Six and the Village Voice.

Cat said...

Apparently this lawsuit was meant to keep their name in the limelight as our Val was negotiating a book deal. That is the Wilson's angle (Joe had his own book already). Someone mentioned that the fact that they have tremendously benefited financially from this whole thing weakens their case that they've been ruined.

Also, it should be reminded that the whole reason for this affair is that Wilson was claiming that Cheney's office sent him to Niger. Cheney (or aides on his behalf) clarified that he asked the CIA to look into Hussein/Niger?yellowcake thing, and it was PLAME who volunteered her husband. No way would the administration have picked or asked for Wilson. VALERIE and JOE inserted themselves into it all. If Joe wasn't such a L I A R our Val would be living in (relative since they ride the cocktail circuit in DC) obscurity in her non-covert job at the CIA. But NoOOOoooooo!

jeff_d said...

I have to confess that I don't understand how a free speech claim really fits here. The constitutional claims in the Wilson-Plame Complaint are only viable if the disclosures were otherwise unlawful. Wilson and Plame cannot have a constitutionally protectable interest without some underlying entitlement to have the information kept secret. It is now fairly clear that none of the targets of the lawsuit disclosed classified or otherwise protected information. Some of the information was already known to Novak from some other source and some was available to the public via Who's Who. So it seems superfluous to assert a First Amendment defense when there is a glaring defect in the constitutional claims already.

If it were otherwise--if there was a constitutionally protectable interest at stake--it seems to me that First Amendment protection would be unwarranted. When a government official tramples the constitutionally protectable rights of a third party by unlawfully disclosing information, it should make no difference whether the disclosure is made directly to a member of the press or whether the information dribbles into the public consciousness through some other means.

I think the First Amendment theory is also superfluous with respect to the tort claims. Plame's identity was not "private." The only reason it was regarded as a secret at all is due to the (alleged) governmental interest in keeping it secret. That Wilson converted it into a matter of public interest with his NY Times op-ed seems to me far more obvious than most of the coverage of these events suggests. How can one reasonably dispute that the circumstances by which the likes of Joe Wilson was assigned to perform intelligence gathering on nuclear weapons was a legitimate subject of public concern? The tort claims have to fail because the personal privacy rights of Wilson and Plame so clearly are not at issue. The public disclosure of private facts tort and the First Amendment have long coexisted in most jurisdictions for the very sensible reason that "private facts" have to be those the disclosure of which are invasive of a reasonable person’s privacy. Information willingly published for the purpose of advancing one’s standing in the D.C. social set does not fit the bill.

I think Amar’s suggestion that the First Amendment has an important role in this case is bizarre.

Bruce Hayden said...

Let me add a link here to the complaint for anyone really interested in the Wilsons' case against Cheney et al.

Interestingly, since we are talking 1st Amdt., the Wilsons have a 1st Amdt. claim too (their First Cause of Action, p 17), and it would be interesting to see whose trumps whose. The Wilsons are claiming that retaliatory actions were taken by the defendants in reprisal to their exercise of their 1st Amdt. right to speech.

I thought this a bit far fetched, but the Wilsons do plead that it was done under color of federal law, and a someone noted a case where a state level official had been found liable under this theory.

Of course, the suggestion that it was done under color of federal law skirts awfully close to an admission that the defendants were doing this within the scope of their offices, which would not only provide them with immunity, but would also potentially allow the DoJ to intervene and invoke the Federal Tort Claims Act (FTCA). And, unfortunately for the Wilsons, if that should happen, they haven't complied with it, and that too would be grounds for dismissal.

Back to the 1st Amdt. issues. We have a Constitutional Law expert moderating this discussion. I wonder about her take on these competing 1st Amdt. claims. (Ann, if you demur, I would understand - my understanding is that 1st Amdt. is a specialty within Con. Law - I am hoping that Volokh has something on this, because I think he spends more time in this area - but his site has been unavailable to me all day).

ChrisO said...

It's amazing how many factual innacuracies and assumptions are being repeated since this suit was filed. Cat, in particular, managed to hit a home run by not having one accurate statement in his or her post.

First, despite what Ann says, Fitzgerald's vigorous investigation without an actual indictment for releasing Plame's name does not mean that we can assume that no crime occurred. As Fitzgerald made very clear in announcing the Libby indictment, Libby's coverup and dissembling (not to mention Rove's repeated trips to the Grand Jury to "clarify" his testimony) made it impossible to conduct a thorough investigation. That's why he took the perjury charges so seriously. The fact that you are successfully able to lie to the authorities doesn't mean you're innocent.

For the millionth time, Joe Wilson never claimed that Cheney or Cheney's office sent him anywhere. Read the op-ed. This is a canard that has been spread effectively, and still gets repeated by the press. I'd like to see one cite or quote where Wilson says Cheney sent him to Niger.

It has also not been established that Plame initiated the idea of sending Wilson to Niger. This is another "fact" that has become an article of faith on the Right.

It has also been reliably reported that Plame was working on intelligence about Iran's nukes. She can no longer do that work. Believe it or not, some people actually consider their jobs to be about more than money. The fact that they may be making money from other sources in no way mitigates the fact that she can no longer pursue her life's work, especially if she was working on possibly the most crucial issue currently affecting our country's security.

While I won't pretend to be an expert on the law, my gut reaction is that the Bush administration brought the power of their position to bear on two individuals who had displeased them. While the courts will determine if this was illegal, I am at least as concerned about them being held accountable for their actions as I am about First Amendment precedents.

On a related note, seeing Ann suggest that anyone who supports Plame is reacting from "the old anti-administration blood lust" brings up a question that's been bothering me for a while. While there are repeated references to Ann being a Democrat, this board reads like many of the other right wing boards I visit. The commenters are overwhelmingly on the right, and very rarely seem to disagree with Ann's opinions other than on legal technicalities. Meanwhile, virtually all of Ann's most critical comments seem to be reserved for Democrats and/or liberals, with many of the same mocking comments I see on the other right wing boards. It's not my place to state what Ann's beliefs are, but she seems to fill the Zell Miller role of the Republican's favorite Democrat. I just don't see where the Democrat part comes in.

tjl said...

ChrisO said,
"this board reads like many of the other right wing boards I visit. The commenters are overwhelmingly on the right, and very rarely seem to disagree with Ann's opinions other than on legal technicalities."

Apparently you missed the gay marriage threads, Chris.

John in Nashville said...

Professor Amar fails to appreciate that an immunity defense and a defense on the merits are not exclusive of one another; there is no either/or component. Immunity is not a defense to liability--the successful assertion of immunity means that the suit does not proced at all.

A defendant's assertion of immunity at the pleading stage ordinarily results in a stay of discovery until the immunity issue is resolved, and an order denying a claim of immunity is ordinarily appealable immediately, with the stay of discovery in place pending the interlocutory appeal. This adminstration's penchant for secrecy and avoidance of scrutiny makes that stay of discovery particularly valuable to the Vice-President.

If the assertion of immunity is unsuccessful, the defendants remain free to assert a First Amendment issue as a defense on the merits.

I am unaware of any precedent as to whether a Vice-President sued for damages for his acts in office is entitled to absolute immunity, or instead whether only qualified immunity is available insofar as the conduct at issue did not violate clearly established constitutional rights of the plaintiffs, measured at the time of the offending conduct.

Nixon v. Fitzgerald relied upon the many constitutional duties prescribed for the President as head of the Executive Branch. The Supreme Court reasoned that the defense of suits for damages for acts and omissions taken by the President while in office would undermine the constitutional separation of powers.

The constitutional duties of the Vice-President are much more circumscribed, at least while the President is alive and not incapacitated. Indeed, the duty of presiding over the Senate is more nearly associated with the Legislative Branch than with the Executive Branch.

Neither cabinet officials (Butz v. Economou) nor high level presidential aides (Harlow v. Fitzgerald) enjoy absolute immunity for their official acts and omissions. A court could reasonably conclude that the office of the Vice-President is more nearly akin to department heads and senior staff than to the unique constitutional role of the President.

Many have surmised that the Wilsons are more concerned about using discovery to unearth embarrasing information than about actually winning this suit. The timing of the suit, however, suggests that any significant political fallout is unlikely to occur during the current presidential term.

Bruce Hayden said...

I am not sure that even the president has unlimited immunity. Witness Clinton and his contempt of court.

That said, the Vice President's job is as big or as small as the President wishes. In the case of Rosevelt and Truman, it was so circumscribed that the later apparently didn't even know about the atomic bomb until he became president himself. On the other hand, Cheney has significantly more authority than any VP in my memory. Not quite the co-presidency that Hillary expected, but closer than any that I know of.

As a result, I suspect that Cheney's office, and, thus, immunity, is going to be quite broad, and that most, if not all, of what he did here would be subsumed therein. I would also think that both Rove and Libby would also have been doing their designated tasks, and, thus, too within the scope of their jobs, and thus, should also be immune - except..

The problem arises that the Wilsons have alleged that they were acting with improper motives (animus towards the Wilsons, with the intent to harm them), and thus, implicitly, immunity should not be warranted. But the other side of this is that the defendants have repeatedly stated that the purpose of whatever they did here was to rebut Wilson's NYT article, through showing that Cheney did not send him to Niger, but his wife was behind it - i.e. nepotism.

I frankly am not sure whether these two things can be separated, but if they can't, I suspect that immunity will be granted.

Bruce Hayden said...

ChrisO

You cite Wilson's article, and I agree that it doesn't precisely say a lot of things that people say it said, and that is because, IMHO, he filled it with a bunch of artful misdirections. For example, he said that he had not found that Niger had sold Yellowcake to the Iraqis. But, of course, that wasn't the issue. The President's SOTU message, that Wilson was trying to debunk, said that the Brits believed that the Iraqis were TRYING TO ACQUIRE it. And, that was indeed his mission to Niger. And, indeed, his verbal report to the CIA was taken by them as evidence that the Iraqis had tried to acquire it. Ditto, of course for his statement about how he was sent. He implied that Cheney sent him, but didn't state it.

As to whether a crime occurred, let me suggest that you read the relevant statute(s). One of the requirements for convicting someone of outing a covert agent is the requisite intent. And part of this is knowing that the CIA is taking affirmative steps to conceal the agent's connection to the U.S. This was pretty clearly negated when Novak's CIA source confirmed that Plame worked there. There is also no real evidence that the defendants knew that she had been covert. And there is a distinct probability that she had not been overseas undercover w/i the previous five years.

So, no, it can't be disproven, as of yet, that no crime occurred, but citing Fitz won't convince anyone that a crime did occur.

Finally, as to Plame's role in sending her husband to Niger. Again, nothing has been proven. BUT, the Senate Intelligence Committee report, signed by members of both parties, indicated that she had first verbally suggested that he be sent, and then followed that up with a memo. While there is no absolute proof yet of her role, it is significant that he was essentially sent by those she worked for or closely with at the CIA (the non-proliferation group in the DO).

In any case, of all the evidence I have seen so far, I think that the defendants are going to have an easier time proving their case than the Wilsons are. In particular, their main defense is that they were working to rebut Wilson's NYT article, and the damage it potentially was doing to their job of selling the invasion of Iraq. That is clearly w/i their job functions, and is cooroborated by any number of known facts. On the other hand, the Wilsons allege that the purpose of all this was retribution. But they have shown scant evidence of that to date. Rather, the main evidence, if you can call it that, is Joe Wilson's constant refrain on that subject. Indeed, he was claiming animus long before ANY evidence to support it appeared.

Seven Machos said...

I am getting a sense of the zeitgeist that Plame and Wilson are about to become Lewinsky-esque and Paula Jones-esque, and that the country is ready to move on from this non-event. I wonder how these two will accept becoming frivolous?

Also, it is amusing to watch our resident legal scholars on the left twist themselves in knots as they move the goal posts again and again and again. I am using a mixed metaphor here, but it sure beats the arcana you guys have wrapped yourselves in.

SippicanCottage said...

There seems to be two competing strains of political thought, based on the two political parties. Each has decided that they can move their native party away towards the poles.

Lots of democrats are being told they aren't democrats at all, all the time. The intellectual purity required to remain a democrat becomes more demanding each day it seems. The republicans seem to be trying to force a more conservative zeitgeist into the general animus of their party as well, although it seems far tamer an attempt at intellectual purity. It rarely gets over the griping stage, occasional Harriet Miers moments aside.

Super Geniuses will now explain to us all how unilaterally deciding that persons who used to comprise the vast majority of the persons who identified themselves as democrat are no longer welcome in the democrat party. Don't even call yourself a democrat in Super Genius' presence, unless you're wearing your Truth Out! tee-shirt, or he'll call you the rethuglican he knows you are.

Super geniuses will now explain how expelling the majority of persons from their minority party will make this party larger.

Super geniuses will now explain how this is all a plot hatched by a machiavellian mid level political operative serving a president that will never run for election again.

Super geniuses, feel free to bring up the thermite, if you feel it's necessary.

ChrisO said...

Bruce:

It seems the best anyone can come up with is that Wilson "implied" that Cheney had sent him to Niger. This is from the op-ed: "In February 2002, I was informed by officials at the Central Intelligence Agency that Vice President Dick Cheney's office had questions about a particular intelligence report....The agency officials asked if I would travel to Niger to check out the story so they could provide a response to the vice president's office."

I fail to see how that is an implication that Cheney sent him. Add to that the fact that Wilson has repeated several times that he never said Cheney sent him. That's about as plain English as you can get.

As far as Wilson's wife sending him, if you read Pat Roberts' appendix to the report, he states that the Democrats on the Committee would not sign off on the statement that Plame sent Wilson. So although the Dems signed off on the report, they did not sign off on that section.

And Wilson's mission wasn't designed to "debunk" Bush's State of the Union statement. Wilson said that he was told he was going because the VP's office had questions about an intelligence report. Again, from the op-ed: "While I never saw the report, I was told that it referred to a memorandum of agreement that documented the sale of uranium yellowcake — a form of lightly processed ore — by Niger to Iraq in the late 1990's."

As for the crime being negated because the CIA confirmed her employment to Novak, we only have Novak's word for that. It's interesting how, when Novak came out with his column last week, Republicans were quick to declare every word incontrovertible proof, rather than just another side to the story. But I have seen that it's a common tactic on the right to take and shred of evidence and use it to declare "case closed." In fact, Bill Harlow, the CIA official in question, has maintained all along, and repeated after Novak's most recent column, that he never confirmed Plame's employment, but urged Novak not to publish her name. A logical person would infer from his reaction that she was indeed a CIA employee, but that's a long way from saying the CIA "confirmed" it. Novak is a long-time water carrier for the Right, and has little credibility with me.

As for the White House knowing she was covert, knowledge is a difficult thing to prove, especially when you have administration officials being less than forthcoming. But the fact is, if people like Rove and Libby have top secret security clearances, they have a special duty to ensure that they protect the top secret information they are privy to. It is yet to be determined if they broke the law. But learning the name of a CIA agent, and revealing it to the press without determining if the information is classified, is the height of negligence and irresponsibility, particularly when done for purely political reasons. Ignorance is not always a blanket defense, and while they may technically not be guilty, I fail to see how anyone can cheerlead for their reckless actions. Or is lack of indictability the only standard to which we hold this White House?

Cat said...

Chriso - If you believe this to be a "right wing" site and don't like what you read, go to where you feel comfortable. What's with the accusations and Democrat litmus test? I for example, never read Kos because I feel as though I entered a den of namecalling, shouting teenagers incapable of reason.

Whatever Wilson's implication, the reporter's questions to the WH were why did they send Wilson of all people. That was also one of the questions from the talking heads on the talk show circuit - why send a Clintonite?

No matter how you want to rationalize, this all began from Wilson's lie. He lied about why he was sent (the CIA pulled HIS name out of a hat?), what he found (which he admitted he lied in the op-ed during the hearings at the Capital) and he's been making a mint out of it ever since. Finally, she was not a covert operative no matter how you slice it. Period.

This is not a free speech case. They have no case.

I can't believe the people going to such lengths to defend people like the Wilson's. They aren't worth it. And they are making millions from the publicity.

Brian said...

S. Cottage says: "The intellectual purity required to remain a democrat becomes more demanding each day it seems."

Now here's an interesting political-Freudian slip. I believe Mr. Cottage meant to say, the "ideological purity required." If he intended to say "intellectual purity," I would say he's right. Democrats are beginning to insist that political arguments be evaluated through use of the intellect.

In addition, he's right to say that use of the intellect is much more "demanding" than a simple recitation of official political talking points. Worth the extra effort, though. At least if we hope to maintain some rough approximation of a democracy in this country.

ChrisO, I have no idea whether or not Ann calls herself a Democrat but, in any case, I've gotten the impression that a wide variety of opinions are welcome here. Of course, there is a sign on the door (the right hand side of the blog) that says "Buy Conservative Ads." Even so, members of both the reality-based community and the party-line community seem to have equal access to the site.

SippicanCottage said...

Brian, you may want to consider the possibility --however remote --that by referring to "intellectual purity," I may have been, how do you say this...hmm.. well, um...making fun of the person claiming intellectual purity when what they're doing is a form of moral and intellectual preening coupled to crabby insane partisan pyrrhic paranoid ranting.

Just a possibility.

Also keep in mind that just because my name is "Cottage," there's only a fifty-fifty chance I'm covered all over with shingles. Words are funny that way.

Now, what were you saying about the thermite?

monkeyboy said...

Perhaps the Vice-President should use the defense that the NYT is using for the leak of the financial monitoring program.

Since everyone already knows the CIA has spies, there was no danger to the leak.

VICTOR said...

Ditto what ChrisO says.

As to the preclusive effect of an empty criminal investigation the law is pretty well settled that it means zilch in the criminal context.

So the bottom line is that Cheney would have to slog through discovery and then argue that disclosure violated her right. The tweak (at least in some states would be the SLAPP scenario). I'm not sure how that plays out here.

Also, it's not really clear that Cheney was exercising his first amendment rights. He wasn't speaking as a private individual he was speaking as a govt. official. At least he would likely need to assert in order to pursue the immunity argument. The rights of the government to speak are fairly different from the rights of individuals. (To be sure the govt. has the right to speak as well, but the analysis is far from the same.)

The First Amdnement and immunity defenses are in tension. We don't know any of the facts. The key will be whether the suit is dismissed at an early stage or we get to see the fun of discovery (along with a slew of state secrets defenses). As to the effect of the lack of indictment, it's roughly nil.

VICTOR said...

I meant to say it would mean zilch in the "civil context".

ChrisO said...

Cat

I wasn't going to write a reply to your points, because I realized that I needn't bother making points that are backed up by quotes and cites when you don't bother to support any of your blanket statements with facts. However, I will address a couple of points quickly. I don't think the CIA pulled Wilson's name out of a hat. Perhaps they pulled it from a list of former ambassadors to Niger who still had many contacts in the country.

And are you really suggesting that the White House felt compelled to leak her name because of questions from the press? Since when does this administration care what the press thinks? I keep hearing talk about how Bush is his own man, until someone needs to make an excuse for his actions, then he's suddenly under a constant barrage from Democrats and the press that forces the poor guy to do things he doesn't want to do.

Finally, the notion that the White House would never send a "Clintonite" is a damning statement about the White House. Are you suggesting that the only operatives the CIA should use are Republicans? To use your words, what's with the litmus test?

And to those who responded to my comments about the political leanings of this site, I never said I felt unwelcome, and I'm not applying a litmus test. When I first started coming here, I found it interesting to visit a site maintained by a centrist Democrat, who saw good and bad in both Democrat and Republican positions. Since then, I've only read the bad about the Democrats, which I find puzzling. Meanwhile, I have on more than one occasion seen a variation of the comment "See, even Ann agrees with us, and she's a Democrat." It's not a litmus test, but it's puzzling to see a supposed Democrat offer nothing but criticisms of the Democrats, often using the same stereotypes used by Republicans.

Brian said...

Mr. Cottage responds: "Brian, you may want to consider the possibility --however remote --that by referring to "intellectual purity," I may have been, how do you say this...hmm.. well, um...making fun of the person claiming intellectual purity when what they're doing is a form of moral and intellectual preening coupled to crabby insane partisan pyrrhic paranoid ranting."

Yes, Mr. Cottage, it is important to define our terms. In fact, I considered the "possibility" you mention, but dismissed it in light of the context in which your comment was submitted. Your comment was posted in response to remarks made by our friend ChrisO. In essence, ChrisO said, "hey, why not look at the actual facts, add up the numbers, and see if two plus two equals four." Surely, I said to myself, no one, whether a Cottage or a McMansion, would believe that ChrisO was engaged in any form of "moral and intellectual preening coupled to crabby insane partisan pyrrhic paranoid ranting." However, I acknowledge the possibility that I was wrong.

Thanks for the response and I commend you on your ability to fight what you perceive to be intellectual preening with effective intellectual preening of your own. Also, thanks for forcing me to look up the definition of the word "thermite." You've enabled me to add one more arrow to my quiver in preparation for my next round of intellectual preening.

Cedarford said...

I believe it is important to remember the big problem that emerged with the CIA and FBI in the 70s was that they were suborned for partisan political purposes to strike at political enemies.

In his way, Joe Wilson's highly partisan and public political attack using his "CIA inside resources" was no different than what J Edgar Hoover did with a career-ending media leak on one of his targets foibles, or Nixon using his loyalists inside the CIA to embarass and harass his Democratic enemies.

Perhaps this does align with 1st Amendment, but isn't CIA nepotism and a cell of partisan activists inside the CIA valid news? Especially if they have already decided, as J Edgar Hoover did in his prime, that the media was a wonderful attack vehicle or the threat of public disclosure made for an excellent blackmail situation to get his foes to "heel"?

Now, if the CIA has been twisted for partisan purposes, used as a political attack tool though nepotic connections - how exactly can this unethical and legally suspect practice be stopped other than by saying "Nepotism"??? Even if that means the next obvious question is ....WHO??? What relative put an unqualified hyperpartisan opponent of Bush on the junket and was a factor in his global publicity seeking charges??

Joe Wilson, not the Bushies, laid the path that the public and the media would have followed back to his wife. He is the true "outer", and Plame, rather than being a victim, was a happy nepotic co-conspirator who presumably could have stopped Joe Wilsons publicity machine and quest for a high Democratic appointment, but did not.

The lawsuit will be a fine chance to explore the nepotism charges, Plames allies in the CIA engaged in partisan sabotage intended to embarass and derail programs of an elected Administration they disagree with, and a chance to explore what new laws and regulations are needed to separate the FBI, CIA from their resources being misused by partisan operatives.

Seven Machos said...

In what capacity -- besides a stupid one -- was Wilson acting in when he wrote the op-ed for the Times?

Lefties act as if Wilson can do whatever he wants but those he criticizes are completely powerless to speak in their own defense. It's absurd. It's the classic "criticize-then-accuse-of-censorship" dodge when people respond. Very common on the left.

Also, I love how the lefties here say that Fitzgerald couldn't demonstrate even to a grand jury that laws were broken but that laws were broken anyway. And that it is now assumed that the White House leaked anything.

I am highly amused.

sdRay said...
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