Althouse: Don't Plame me....

July 14, 2006

Don't Plame me....

... if I don't wanna talk about the Plame civil suit. Has anyone ever sought more attention about wanting to be unknown? It's uncanny.

ADDED: Here's a test of whether Joe Wilson and Valerie Plame are sincere in seeking damages for what they say is a wrongful behavior. If the defendants were to agree to settle the case this way, would they agree to have a neutral arbiter calculate the amount they made because of what has happened to them and the amount they would have made if it had not happened, and have the defendants pay them the difference if the second number is larger, and have them pay the defendants the difference if the first number is larger?

CORRECTION MADE: That's was "neutral arbiter," not "neutral artbiter," but I assure you, I have a whole program of performance art based on typos, and I will be neutrally artbiting soon, in your town.

68 comments:

J. Cricket said...: Ah yes, leave it to the law professor to ignore the cause of action and the actual merits and reduce this lawsuit, which could harm some high-level Republicans, to "attention-seeking."

Hard as it must be for you to see the world outside your own perspective, Ann, the fact is that the entire world is not about attention-seeking. But if the UW ever decides to fire you because you spend all your time blogging, I'll be sure to reduce your lawsuit to "attention-seeking."; 7/14/06, 7:55 AM
Ann Althouse said...: "The actual merits"?

"if the UW ever decides to fire you"... For speech? Hey, if teaching 9/11 conspiracy theory in a course on Islam counts for a part-time lecturer, surely blogging about anything outside of class is okay for a tenured professor.

But thanks for checking in, you pathetic little, profileless set of initials.; 7/14/06, 8:04 AM
Jim Kenefick said...: Fact is, the Plames have spent an inordinate amount of time using the press to publically declare that they want to be left alone.

They've parlayed this "scandal" into millions of dollars.

They attend celebrity functions more often than most celebrities.

But their "privacy" was invaded, right? hard to invade something that doesn't seem to exist.; 7/14/06, 8:04 AM
Douglas Hoffer said...: Seems like they're pretty anxious to extend that 15 minutes...; 7/14/06, 8:07 AM
Ann Althouse said...: Try to think of a good counterclaim. The first thing I think of when I see a civil suit is: Now the defendant should think of all the claims he didn't bother to bring a lawsuit about. Surely, they defamed Cheney or something, something at least as good as what they cooked up.

But don't commit a Rule 11 violation. Even if the plaintiff already has.

And what about damages? Haven't they made far more money off what happened to them than they could possibly have made if it didn't happen?

It seems to me that the most meritless thing about the case is that they are asking for money for something that made them a ton of money.

I wonder if they'd go into a binding arbitration where someone looked at the amount they've made and the amount they would have made, with them having to pay the defendant the difference if the first number was larger.; 7/14/06, 8:21 AM
SippicanCottage said...: This comment has been removed by the author.; 7/14/06, 8:37 AM
David said...: I'd love to see the defendants claim that this is a SLAPP suit. After all, the plaintiffs are attempting to punish the defendants for making a true statement in a matter of great public political interest. As it happens, invasion of privacy is one of the stereotypical SLAPP suit causes of action.; 7/14/06, 8:49 AM
Bruce Hayden said...: Ann,

Just to harass a bit for your refusal to opine, but claims 1-4 are Constitutional claims, and, IMHO, somewhat suspect. I was unaware of a 5th Amdt. Equal Protection or Right of Privacy, for example. My understanding is that Equal Protection is a 14th Amdt. clause, applicable to the States and that typically, Right of Privacy is a civil state tort.

I can understand your reluctance to discuss this subject, given that it has been beaten into the ground, and if you do chime in, you may get stuck being interviewed on it by radio, TV, etc. So, don't take this as a real suggestion that you do, but rather, just that this chiding that this does fall a little more into your expertise than a lot of things.; 7/14/06, 8:53 AM
Bruce Hayden said...: FYI, here is a link to the complaint, compliments of the VC.; 7/14/06, 8:55 AM
alkali said...: 1. It strikes me as unlikely in the extreme that the Wilsons have made much if any money from what has happened to them. Having your picture in Vanity Fair? That and 50 cents will get you a cup of coffee. Wilson did write a book, which probably paid him something, but not "a ton of money" or "millions of dollars."

[There is a potentially interesting legal question I haven't thought about: suppose your neighbor's vicious dog rips your face off. Can your neighbor assert that the proceeds of your memoir, the unexpected bestseller "Lassie Ate My Face," should be offset against your damages? I think I'd argue not, but I can see the other side too.]

2. There is no irony in the fact that the Wilsons are now public figures. The Wilsons' objection to what the White House did is not that it makes them more likely to be approached at cocktail parties, it was that Mrs. Wilson's job required that the nature of her work be kept a secret(*), and the White House intentionally disclosed it.

(* Some people purport to dispute this, but the fact that the CIA made a referral to Justice on the matter suggests to me that the question is resolved. The CIA does not go about making referrals when the White House refers to Porter Goss as CIA Director.)

3. I agree with Prof. Althouse that the purpose of the lawsuit is not to recover on the merits but I disagree that the purpose is attention-seeking. The purpose is to use the tools of civil discovery to inflict embarrassment and other pain on the individuals who the Wilsons see as political opponents. I don't think this is a particularly good thing but at the same time the political lawsuit does seem to be just one more weapon in the political arsenal these days.; 7/14/06, 9:03 AM
Freeman Hunt said...: Do you really want any president to be able to act this way?

If an agent sets her husband up on a "fact-finding" trip so that he can hang out overseas sipping cocktails, and then return to the US to write dubious a op-ed to undercut administration foreign policy... then yes.; 7/14/06, 9:28 AM
Gahrie said...: 1) Plame's job was not covert. The CIA never claimed she was covert when Novak called them for confirmation.

2) The Vanity Fair article was before Novak's column. Journalists in D.C. who are honest will admit that her job was common knowledge on the D.C. cocktail circuit.

3) Novak called the administration three times about the Wilson trip. They didn't call him. It is a pretty feeble conspiracy that relies on an outside actor doing something outside your control three times.

4) Anyone who has not yet realized that the CIA bureaucracy has it in for Pres. Bush has their head in the sand.; 7/14/06, 9:32 AM
The Commercial Traveller said...: "But the reason I got interested enough to comment is that I feel sure if Bill and Hillary had outed a nice Republican CIA agent, the conversation would have gone somewhat differently (in all settings, not just here). That's my litmus test: if your guy did it, would it still be a crime? If the other side did it, would you all of a sudden think differently? I'd like to think I'd be pretty ticked at my own team if they did something this rotten."

Um, don't circumstances count for anything?

OK, I'll think about this scenario:

British intelligence issues a report saying that Serb leader Milosevic is sought biological weapons to achieve his ethnic cleansing more efficiently.

Let's suppose that this "nice" Republican CIA agent working during the Clinton adminstration got her husband a gig investigating that claim.

Clinton, in a speech, lists Milosevic seeking chemical weapons as one of many justifications for action against Serbia.

The CIA operative's husband writes a public op-ed stating that he had been sent by the CIA on a covert mission and didn't find evidence that Milosevic's agents sought these chemical weapons. He therefore comes out in this editorial against military action in Serbia.

The press is all over this and feigns outrage over Clinton's "deception." Meanwhile, the British intelligence stands by their original claim and the Clinton White House is not satisfied with the work of the husband in his "fact-finding trip."

They find out that this guy that was sent to investigate the claims did what they think was a half-assed job and, further, that he was suggested by his CIA agent wife.

Let's say that Clinton aides, not knowing that she was covert (if she indeed was), make this situation known to the press in order to discredit the husband's faulty conclusions (as the adminstrations believes them to be).

Would I be outraged at Clinton and his underlings? Nope, I'd be more outraged at the nepotism and incompetence of the CIA.; 7/14/06, 9:34 AM
jeff_d said...: What about a counterclaim on the following whistleblower theory:

1. Wilson published information on a matter of public concern that contained an inaccuracy (the implication that the vice president's office selected him for the trip).

2. Whoever exposed Plame's role in getting Wilson the job did so in order prevent the public from being misinformed by Wilson's piece in the NY Times.

3. Wilson's public statements (and possibly the lawsuit itself) are efforts to intimidate a government whistleblower into remaining silent on a matter of public interest and thus constitute unlawful retaliation.

I don't know whether any statutory whistleblower protections or "public policy" could be stretched far enough to cover this scenario, but this is what I might be looking for if I was researching potential counterclaims. Given that independent investigations have concluded that Plame did in fact get Wilson the Niger gig and Fitzgerald has apparently concluded that the Plame "leak" was not unlawful, it seems at least possible that efforts to bully the source of true and relevant information about Plame's role could rise to the level of unlawful retaliation.

Of course, Ann’s right that this is not longer very interesting. The best outcome would be for the Wilson-Plame’s to just slink away, never to reappear except as a Trivial Pursuit answer.; 7/14/06, 9:35 AM
Bruce Hayden said...: orn

You are assumming facts not in evidence - that the White House or its people outed Plame. Or, indeed, that the Administration did anything intentional here. It may be true, but so far, there is no evidencce that I know of to back up this assertion. More likely, given the facts that we now know, they were happy with the disclosure, but weren't behind it.

In particular, Bob Novak's article is the first to have disclosed Plame's role in getting her husband his junket to Niger. According to Novak, this was newsworthy because it threw into question Wilson's implied assertion that Cheney sent him (I say implied here, because Wilson was actually correct in his article, that the trip was at the suggestion of the VP's office - but didn't mention that his wife strongly suggested that he get the posting).

Novak claims that he found out about this from an inadvertant disclosure by a still unnamed person in the Administration, and had it cooroborated by Rove and that Plame's CIA employment was cooroborated by a CIA official.; 7/14/06, 9:57 AM
Bruce Hayden said...: Orn

And that the disclosure was intentional, and done to harm the U.S. There is little evidence that Plame was overseas in the previous 5 years, and even if she had been, there has been no evidence yet that I have seen that would indicate that those alleged to have outed her had the very specific intent required under the statute.

Look, Fitzgerald has spent years and millions of dollars investigating this. Don't you think that if he could have shown a credible case here, he would have? Instead, he is left with a single case based on alleged misconduct during his investigation.

Face it, Fitz couldn't show the specific intent required by that statute, or, indeed, that a law had been broken disclosing confidential information either.; 7/14/06, 10:08 AM
Freeman Hunt said...: Hunt - as for sipping cocktails, your claim sounds like misdirection, not substantive.

Oh, you're right. My mistake. It wasn't cocktails it was "sweet mint tea."

And it is substantive. Sitting around in a hotel drinking tea and having meetings is hardly what I would call an investigation.; 7/14/06, 10:09 AM
Bruce Hayden said...: Let me add the text of 50 USC 421(a): Whoever, having or having had authorized access to classified information that identifies a covert agent, intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent’s intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than ten years, or both.

Novak, of course, didn't have authorized access to classified information. Cheney is probably out first because he didn't disclose anything to anyone who wasn't cleared, and secondly, because he has declassification authority. Rove and Libby are most likely out because there has been no real evidence yet disclosed that they knew that the U.S. was taking affirmative steps to protect Plame's relationship to the U.S., and, indeed, the fact that a CIA official would confirm her employment at the CIA to Novak would tend to discredit this assertion even more.; 7/14/06, 10:30 AM
Fritz said...: Her only course of action is against the CIA, just like Linda Tripp had actions against DOD. The case will be immediately thrown out, you can't sue Executive Branch officers acting in the daily course of business. Monica Lewinsky would have better standing against Clinton for sexual harassment, that was not official business! The greatest irony, they are suing for First Amendment cause, claiming the Administration had no right to free speech.; 7/14/06, 10:31 AM
S said...: Ann, your test does not really make any sense because any money the plaintiffs made that they would not have made had none of this happened would not be a setoff against any amount of damages to which they would be entitled if they prevail on their claims.

If Plame and Wilson have made so many millions of dollars arising out of the alleged wrongful behavior, it would appear their motivation for seeking damages is not so much about obtaining compensation for alleged injuries as it about trying to vindicate their allegedly violated legal rights by making the individual defendants (literally) pay.

If Plame and Wilson have, in fact, received millions of dollars cashing in on their fame, then I think it is disgraceful that they are asking the public to contribute to their legal fees.; 7/14/06, 10:46 AM
Bruce Hayden said...: I think that the Wilson's are suing either over the principle of the whole thing, or, less charitably, to keep their names before the public.

Part of their problem is going to be that even if they win, under some of the claims for relief, their subsequent benefits from their notoriety may be counted against any damages they may have incurred.; 7/14/06, 11:00 AM
PD Shaw said...: Assuming that the Administration outed Plame to punish Wilson, I still think its bad precedent to allow civil suits to further open the door to classified information. And if the civil suits don't allow such disclosure, then they are unlikely to produce anything but arbitrary results.; 7/14/06, 11:05 AM
The Drill SGT said...: Changing the focus a bit:

Is there a consense that whatever the purpose or publicity value of the suit, it is mostly a nuisance suit. e.g.

1. The damage issue seems moot
2. The Wilson's have seemed to seek rather than avoid the press.

I think the more interesting question is, why would any lawyer take this case?

1. On an hourly basis? The bill will be huge, Wilson is likely not going to win, and having won, will not collect much. Bad for Wilson

2. On contingency? Good for wilson, for the reasons above. Bad for the lawyer for the same reasons
3. Pro Bono? Dem Lawyer?
4. Big backer? e.g. Soros?

Follow the Money. Who gains?; 7/14/06, 11:10 AM
The Drill SGT said...: A non-lawyer view of Rule 11:

Did the attorney who filed, know there were misrepresentations in the filing

http://www.law.cornell.edu/rules/frcp/Rule11.htm; 7/14/06, 11:31 AM
Victor said...: Here are the two questions as I see them. First are there any defenses/immunities which would preclude the suit being brough. If not, is there a cause of action (somewhere) if government officials disclose secret/private information about you as a retaliatory tool. I'm not sure the answer to the first question.

The answer to the second question should pretty surely be yes.

And to Bruce and everyone that will gear up to argue the "facts" not so fast. This is a Complaint. The facts will come out if at all -- waaaaaay down the road. Nothing we know at this stage will remotely qualify as "facts" relevant to this lawsuit. (I guess that's another issue - whether discovery would interfere with the administration's ongoing activities.)

Ann I'm surprised to hear you talk about their motivations. Why on earth does that matter? People bring suits for all sorts of reasons. They could have probably just brought an action seeking a declaration that their rights have been violated and seek nominal damages. All lawyers in drafting pleadings, try to make their complaints persuasive storytelling documents. So they said they were damaged to make the story more compelling. Who cares.; 7/14/06, 11:31 AM
Bruce Hayden said...: I am not sure where I made any real suggestion about the ultimate facts, just the viability of their case based on the facts known at present.

As to immunities, yes, no doubt some will be asserted, and, I suspect somewhat sucessfully - but maybe not entirely, as you suggest, to the extent that this went beyond their official duties, immunities may not apply.

However, a mere assertion of animus by Wilson doesn't mean that that was the cause of the whole thing. I used the analogy elsewhere, that this is similar to A shooting a couple of times at X and missing, then B shooting at X's general area, and hitting X, then X suing A for being hit by B.

The problem in the pleadings with most of the claims for relief is that they assert that Libby disclosed Plame's identity to a couple of reporters before the Novak article, but then it was the Novak article that caused the damage. And, according to Novak, his disclosure was not doing in furtherance of any conspiracy with the Administration. So, they have a real causation problem on their hands as a result. It doesn't help that they didn't name Novak as a defendant.

This is glossed over in the pleadings, as they blythly jump from the Libby disclosures to Novak's article without really explaining how they might be tied together.; 7/14/06, 11:45 AM
SippicanCottage said...: Kirk parker said:
Loser pay...
loser pay...
loser pay...

I don't know why, but I was reminded of when I was single and childless, and still going out to restaurants...; 7/14/06, 11:54 AM
altoids1306 said...: Isn't the bar for civil suits lower? In that case, maybe they just want to seek some kind of conviction against the Bush administration, given that Libby was only indicted, and has yet to stand trial. It would certainly make for a nice sound bite in the 2006, 2008 elections.

(off-topic)

Would it be safe to say that Ann has moved slightly to the right in the past year? While her opinion on substantive issues has not changed, she seems to have become more critical and less patient with liberal nonsense. (Plame, Lieberman/Lamont, 9-11 conspiracies); 7/14/06, 12:01 PM
ginabina said...: Valerie Plame was listed in "Who's Who" as Joseph Wilson's wife. BY JOE WILSON. How "covert" is that?; 7/14/06, 12:17 PM
Victor said...: I just watched the press conference and the atty was saying the disclosure (one of them) was three years ago, today.

Was the timing of the lawsuit tied to statute of limitations reasons?

There's enough in Fitzgerald's filings to indicate a loose conspiracy. That in itself should be enough. As far as harm I think an unauthorized disclosure itself is harmful -- at worst it would preclude further employment. I think all this is getting deep into the facts, which will be resolved down the road.; 7/14/06, 12:58 PM
Sloanasaurus said...: "....But thanks for checking in, you pathetic little, profileless set of initials...."

What great fun! One of Althouse's all time comebacks.

Lets all settle down and talk about the Iraq war again.; 7/14/06, 1:02 PM
Sloanasaurus said...: I like how the complaint starts off with a quote from Bush about getting leakers. I wonder who the intended audience is?; 7/14/06, 1:06 PM
PD Shaw said...: I agree with Victor, the damage issue bothers me least. Its not too different from the stack of reputational tort lawsuits that Abraham Lincoln filed in his days. I think the lawsuit touches on intangible losses that one can seek a judgment on the principle of the matter, at least so long as the conduct is intentional.

But why would we let an army of lawyers, law clerks, secretaries, jurors, etc. rifle through the classified files at the CIA and the Department of State, if its merely to learn the truth? Alternatively, if such discovery of classified information is curtailed in the national interest, then we aren't going to learn "the truth" anyway.; 7/14/06, 1:30 PM
SippicanCottage said...: This comment has been removed by the author.; 7/14/06, 2:16 PM
Ann Althouse said...: Stephen Verbit: "Ann, your test does not really make any sense because any money the plaintiffs made that they would not have made had none of this happened would not be a setoff against any amount of damages to which they would be entitled if they prevail on their claims."

I never said it would be a set-off in the legal sense. I'm just saying it's obvious that they made a lot of money promoting themselves and came out ahead.

"If Plame and Wilson have made so many millions of dollars arising out of the alleged wrongful behavior, it would appear their motivation for seeking damages is not so much about obtaining compensation for alleged injuries as it about trying to vindicate their allegedly violated legal rights by making the individual defendants (literally) pay."

I think another purpose is much more apparent. This looks like a lawsuit brought for the sake of publicity, political agenda, and disclosure.; 7/14/06, 2:47 PM
knox said...: Niger isn't the only African country which sells uranium ore.

What's the point here? Not sure I understand what you're getting at....?; 7/14/06, 3:03 PM
Freeman Hunt said...: I especially enjoyed this today.; 7/14/06, 3:04 PM
knox said...: ok, got it...; 7/14/06, 4:07 PM
S said...: It does not matter whether or not Plame was "an important spy." Her employment status was classified and not publicly known until Novak published his article on July 14, 2003.

If Plame was listed in Who's Who as Wilson's wife, that is hardly equivalent to revealing her classified CIA employment status. That Wilson was married to Plame was never a secret. Plame's employment status at the CIA was classified.

On the issue of Bush's SOTU address saying Africa and Wilson only investigating Iraqi attempts to buy uranium in Niger, on July 11, 2003, CIA Director George Tenet conceded that claims about Iraqi attempts to buy uranium from Africa in the January 2003 SOTU address were a mistake and that the 16 words should never have been included in the text written for the President.; 7/14/06, 4:21 PM
Freeman Hunt said...: CIA Director George Tenet conceded that claims about Iraqi attempts to buy uranium from Africa in the January 2003 SOTU address were a mistake and that the 16 words should never have been included in the text written for the President.

It's a bit more complicated than that.; 7/14/06, 4:54 PM
Bruce Hayden said...: Stephen Verbit

Not sure if Plame's employment status was classified or not. If it was, Cheney apparently has and had unlimited declassification authority.

As to Wilson, as noted above, he was sent to Niger to find out whether Iraq had attempted to acquire yellowcake. When the CIA debriefed him, they understood his report to indicate that Saddam had indeed tried to acquire such. But then in the NYT article, he said he found that Iraq had not suceeded. Well, yes, but that was not why he was sent over there, and, indeed, was irrelevant to his mission and debunking the President's SOTU message on invading Iraq.; 7/14/06, 4:54 PM
SippicanCottage said...: This comment has been removed by the author.; 7/14/06, 4:58 PM
The Drill SGT said...: Bryin,

and here are his contributions:

WOLF, CHRISTOPHER
WASHINGTON, DC 20007

KERRY, JOHN F
VIA KERRY-EDWARDS 2004 INC. GENERAL ELECTION LEGAL AND ACCOUNTING COMPLIANCE FUND
10/22/2004 2000.00 24981710973

WOLF, CHRISTOPHER
WASHINGTON, DC 20007
PROSKANER ROSE LLP/ATTORNEY

GORE, AL
VIA GORE 2000 INC
03/11/1999 1000.00 20990085083

KERRY, JOHN F
VIA JOHN KERRY FOR PRESIDENT, INC
05/20/2004 1000.00 24981240024
06/09/2004 1000.00 24971372033

WOLF, CHRISTOPHER
WASHINGTON, DC 20007
PROSKANER ROSE/ATTORNEY

FROST, MARTIN
VIA MARTIN FROST CAMPAIGN COMMITTEE
10/08/2004 250.00 24962661837

WOLF, CHRISTOPHER
WASHINGTON, DC 20007
PROSKAUER ROSE LLP

LEAHY, PATRICK
VIA LEAHY FOR U.S. SENATOR COMMITTEE
10/22/2003 250.00 24020072782

WOLF, CHRISTOPHER
WASHINGTON, DC 20007
PROSKAUER ROSE LLP/ATTORNEY

GAY AND LESBIAN VICTORY FUND
12/30/2003 500.00 24990306668
10/08/2004 250.00 24971888544
12/27/2004 5000.00 25990026329

WOLF, CHRISTOPHER
WASHINGTON, DC 20007
PROSKAUER ROSE/PARTNER

WOOLARD, CATHEREN M
VIA FRIENDS OF CATHY WOOLARD, INC
06/04/2004 250.00 24961743236

WOLF, CHRISTOPHER
WASHINGTON, DC 20007
PROSKEUR ROSE/ATTORNEY

SHRIVER, MARK KENNEDY
VIA CITIZENS FOR MARK SHRIVER
09/05/2002 500.00 22992110654; 7/14/06, 6:55 PM
Beau said...: "Don't Plame me....
... if I don't wanna talk about the Plame civil suit."

So I guess there's no possiblity of a non-vlog about it then?; 7/14/06, 7:22 PM
Bruce Hayden said...: But what is the real relevance of whether Plame was covert or not? Besides, that wasn't really Fitz' real problem here. The determination of whether Plame was covert or not is pretty straight forward. Was she undercover overseas within the previous five years? Beyond a reasonable doubt or by a preponderance of the evidence is not that really relevant when you are talking airline tickets and motel receipts.

It was everything else that Fitz most likely could not prove beyond a reasonable doubt, including whether the U.S. was taking affirmative steps to protect her identity and, most importantly, whether or not the potential defendants had the requisite intent. I should note that a CIA official confirming to Novak that Plame worked for the CIA would arguably be somewhat indicative that they weren't trying to keep their relationship with her secret. See 50 USC 421(a).

But then, except for their claim that Cheney, et al., were acting illegally, I am not sure what the relevance of this statute is to the case. It seems like a fairly minor point in the pleadings to me.; 7/14/06, 9:06 PM
Anonymous said...: Ah, now I see! Plame and Wilson are soliciting donations, in the spirit of con men and evangelists everywhere. Why, KosKids alone should be good for a hundred thousand or two.

http://www.wilsonsupport.org/; 7/14/06, 9:06 PM
Bruce Hayden said...: I should point out a couple of more problems with the case that have been mentioned elsewhere.

Someone pointed out that the real emphasis for filing when they did was the statute of limitations, which is three years for at least the state law claims. Since it is filed in D.C., on the basis that most of the actions were performed there, D.C. law would seem to control, and most actions under D.C. law much be filed within three years (see DC ST § 12-301).

The problem is that July 14 was the anniversary of Novak's column, and not any of the actions by the named Defendants. And there is no allegation that Novak was involved in the alleged conspiracy, nor any real showing that they instigated it. Plus, Novak has stated repeatedly to the contrary. Thus, I see no reason that July 14 would be the least bit applicable as a relevant date as to the SOL. Rather, all the claimed actions occurred prior to that 7/14/2003, with the minor exception of Rove's comment to Mathews that Plame was now fair game. That is pretty thin to hang on to overcome the SOL.

The other thing though is that Brent Richardson on a thread at Justoneminute has pointed out that it is likely that the U.S. will intervene as a party, claiming that they were acting within the scope of their employement, and thus, that it was the true party of interest. This would, of course, change the complexion of the case significantly. He also points out that Plame most likely did not exhaust her administrative remedies through the CIA, and that this would most likely overcome at least her employment claim.; 7/14/06, 9:19 PM
vnjagvet said...: Stephen V. says:

"It does not matter whether or not Plame was "an important spy." Her employment status was classified and not publicly known until Novak published his article on July 14, 2003."

That is what Paragraph 7 of the the Complaint alleges.

But what part of her "employment status" was classified?

Her then current job title with the CIA?

Her former positions as a covert agent?

Her maiden name?

The mere fact that in January 2002 she worked for the CIA in some capacity?

The Complaint does not enlighten us with specificity.

Is that because Ms. Wilson did not know what part of her "employment status" was classified? That is unlikely.

I think it is at least a fair inference that what part of Plame's employment status was classified did not advance the narrative of the Complaint, and was, therefore, left fuzzy.

Don't forget. The Complaint's authors are highly skilled attorneys working at an elite lawfirm. My experience tells me that loosely pleaded allegations by lawyers at this skill level are not sloppy mistakes. They are artfully crafted because. in their opinion, they advance their clients' interests.; 7/14/06, 10:47 PM
Anonymous said...: "They are artfully crafted because, in their opinion, they advance their clients' interests."

Do you think they just want a fishing expedition, leading to politcally embarrassing revelations about this administration?; 7/14/06, 11:27 PM
vnjagvet said...: Seven M:

Normally I would agree with you. But the Complaint in this case is 23 pages long and replete with fact pleading.

It seeks to leave the impression that the evil White House trio of Libby, Rove and Cheney conspired to avenge the heroically truthful Ambassador's revelation of Administration perfidy by stripping the fair Valerie of her secret identity.

I am not arguing it is insufficient as a matter of pleading. I am arguing that it is imprecise as to critical details and that it could be more persuasive as a political document were it more precise.; 7/14/06, 11:41 PM
S said...: Don't Libby, Rove, and Cheney Have Automatic Immunity From Suit Since They Were Government Officials Acting Within the Scope of Their Employment?

No. In the first four counts of the Complaint, Libby, Rove, and Cheney are being sued as individuals, under what is known as the Bivens doctrine, for allegedly depriving Wilson and Plame of certain constitutional rights.

In Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the United States Supreme Court held that a cause of action for money damages exists against agents of the United States, in their individual capacities, for conduct in violation of the Fourth Amendment while acting under color of law. The right to recover exists although no statute establishes it - it is a judicially created cause of action. In Carlson v. Green, 446 U.S. 14 (1980), the Court noted that punitive damages "are especially appropriate to redress the violation by a government official of a citizen's constitutional rights" and reiterated the plaintiff's right to a jury trial in Bivens actions.

While Bivens itself dealt only with the Fourth Amendment, the Court subsequently allowed Bivens claims arising under the Fifth Amendment. See Davis v. Passman, 442 U.S. 228, 248-249 (1979). The Third Circuit Court of Appeal extended the action to encompass First Amendment claims. See Milhouse v. Carlson, 652 F. 2d 371, 373-74 (3d Cir. 1981). In essence, Bivens claims may arise out of virtually any deprivation of a constitutionally protected right. The rationale of Bivens is to deter unconstitutional conduct by exposing individual officers to liability for their constitutional torts. See generally, Note, New Life for a Good Idea: Revitalizing Efforts to Replace the Bivens Action with a Statutory Waiver of the Sovereign Immunity of the United States for Constitutional Tort Suits, 71 Geo. Wash. L. Rev. 1055 (November 2003).; 7/15/06, 11:20 AM
S said...: Doesn't Special Prosecutor Fitzgerald's Failure to Indict Libby and Rove For Violating the Intelligence Identities Protection Act Necessarily Preclude Wilson and Plame's Civil Action?

No. In order to establish a violation of Title 50, United States Code, Section 421 [the Intelligence Identities Protection Act], it would be necessary to establish that Libby or Rove knew or believed that Plame was a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years. Apparently, the Special Prosecutor was not able to find evidence that Libby or Rove knew or believed that Plame was engaged in covert work.

None of the claims contained in the civil action filed by Wilson and Plame are predicated on an alleged violation of 50 U.S.C. sec. 421. Instead, Wilson and Plame are claiming that Plame's status as a CIA employee was secret and classified and not publicly known until revealed for the first time in Novak's July 14, 2003 newspaper column. Wilson and Plame are claiming that Libby and Rove's disclosure to reporters of Plame's classified CIA employment status in furtherance of a conspiracy involving Cheney and others to discredit, punish, and seek revenge against Wilson for speaking out against the Bush Administration violated their constitutional and common law rights and caused them economic losses and fears for their and their childrens' safety.

Therefore, in order to prevail on their civil claims, Wilson and Plame will not be required to prove Plame was a "covert" operative, only that her CIA employment status was classified, a fact that Fitzgerald announced at an October 28, 2005 press conference. Of course, this is not all Wilson and Plame will be required to prove in order to prevail on their civil claims. The point here is that Wilson and Plame will not have to meet the same standard with regard to Plame's CIA status as was required to be met by Special Prosecutor Fitzgerald in order to bring criminal charges against Rove and Libby for violating 50 U.S.C. sec. 421.; 7/15/06, 11:22 AM
vnjagvet said...: SV:

Your points are well made.

What is still unclear from public information and from the Complaint is just what about Plame's "employment status" with the CIA was classified on or about July 2003.

I believe the complaint could have cleared this up, because I am pretty sure that Plame and her attorneys know the answer to that question.

What Novak revealed was that Ms. Wilson's wife's name was "Valerie Plame", and that she was an "Agency operative on weapons of mass destruction".

What I was looking for was a definitive statement that those two facts were indeed classified information.

I did not get that answer from the Complaint.; 7/15/06, 12:12 PM
S said...: vnjagvet, what the Complaint appears to be alleging is that the very fact that Plame was employed by the CIA is what was classified. Paragraph 20 of the Complaint alleges in pertinent part: "Also on October 28, 2005, Special Counsel Fitzgerald explained at a press conference announcing the indictment against Defendant Libby: 'In July 2003, the fact that Valerie Wilson was a CIA officer was classified...'"

I don't know if that answers your question. Certainly, if the lawsuit survives pre-answer motions, the defendants can serve discovery requests to explore the basis and scope of the allegation that Plame's CIA employment status was classified.; 7/15/06, 12:32 PM
The Drill SGT said...: VNJAGVET,

How about we split the difference. Valerie Plame's activities for the CIA may have been "classified" from the CIA's point of view, but they weren't very "SECRET" if you catch my distinction.

Yes, perhaps she was listed on rosters as a NOC "Not officially covered" Officer, but

No, her identity was passed to the Soviets by Ames and the Cubans burned her as well.

and certainly anyone that drives to work at CIA HQ in Langley every day for 5 years through the gate, with a parking pass and ID can't expect the entire spook world not to know.

Oh, and she once worked out of the Athen's embassy covered as a DoS staffer. not very NOCish. One would think that once you were a official cover spook working from an embassy, anybody would always assume you still were.

Lexicon:

Officer (e.g. Case Officer) = CIA field employee

CIA Analyst: Inside employee of the CIA

Agent: a local run by a Case Officer

Spy: the other side

I think she was at one point an Officer, but was then later effectively an Analyst.; 7/15/06, 12:32 PM
vnjagvet said...: SV:

Don't you find it strange that the Complaint would quote the Special Prosecutor's statement rather than alleging specifically what the Plaintiff's status was? If that fact favored the Plaintiff, wouldn't you typically plead it precisely?; 7/15/06, 2:55 PM
S said...: vnjagvet, in paragraph 7, the Complaint alleges Plame's status without quoting anyone when it states: "On January 1, 2002, Mrs. Wilson was working for the CIA as an operations officer in the Directorate of Operations. Her employment status was classified and not publicly known until July 14, 2003, when a press report precipitated by leaks from senior government officials at the White House revealed her status and exposed her."

Again, it appears to me what they're saying is that the very fact that Plame was employed by the CIA in any capacity was the allegedly classified secret that was allegedly revealed.

What more do you think they needed to or should have alleged?; 7/15/06, 3:17 PM
vnjagvet said...: See my 10:47 and 11:41 posts, above for my comments on the drafting on this issue.; 7/15/06, 3:35 PM
S said...: For anyone who would like some insight the law relating to Wilson and Plame's First Amendment retaliation claim in Count One of their Complaint, and the standards governing a good-faith or qualified immunity defense that may be asserted by Cheney, Rove, and Libby, check out the decision in Blankenship v. Manchin, 410 F. Supp. 2d 483 (S.D.W.V. 2006), in which a similar claim of free speech retaliation against the Governor of West Virginia in his individual capacity survived a Rule 12(b)(6) motion (meaning the claim was allowed to proceed to the discovery phase at least).

Interestingly, one of the attorneys for the Plaintiff in that case was none other than Robert D. Luskin, who is Libby's attorney now.; 7/15/06, 4:19 PM
vnjagvet said...: Stephen:

Good find.

No help on the classified issue?; 7/15/06, 4:40 PM
S said...: seven, none of my comments have been intended to imply that I think Wilson and Plame will "win" this lawsuit. I'm certain Wilson and Plame's lawyers, if asked, would have refused to guarantee or even predict that they will "win."

Based on my review of Wilson and Plame's Complaint, and a very cursory review of the applicable law, I do believe the Complaint does not violate Rule 11, and I believe at least one of the Complaint's eight counts would survive a Rule 12(b)(6) motion. In other words, leaving aside the ultimate merits of the case, it does not appear that Wilson and Plame's lawsuit will be automatically and summarily thrown out or laughed out of court.

I have not yet looked into and have not formed any opinion on whether and to what extent the case might be stayed pending the resolution of the criminal case against Libby, or whether or to what extent V.P. Cheney might be excused from responding to a civil lawsuit while he remains in office.; 7/15/06, 5:58 PM
vnjagvet said...: Stephen:

If the mere fact that she worked at the CIA were "classified" or "secret", wouldn't her daily drive to and from work from Georgetown to Langley and return "in the open" create the risk that she would by this activity alone reveal classified information and render it no longer "secret"?

Any competent private detective (or news reporter) would have little difficulty ferreting out that fact. If that were the classified information, no one would have had to go to any trouble to find it out.; 7/15/06, 7:43 PM
S said...: vnjagvet, as I read the Complaint, this is what they appear to be saying: "Her employment status was classified" and "In July 2003, the fact that Valerie Wilson was a CIA officer was classified."

If a private detective followed Plame from her house to CIA headquarters and back every day, the detective would certainly have a strong basis to suspect that she is employed by the CIA in some capacity. But how would the detective be able to confirm the fact that she was a CIA officer or what she does at the CIA? I don't think the detective would be able to do that unless someone from the government revealed that information. Therefore, I don't believe the fact that Plame drove back and forth to Langley by itself negates her ability to claim that the fact that she was a CIA officer was classified. I guess the allegedly classified fact is not simply that she was employed by CIA, but what her position with the CIA was, which is what Novak reported.; 7/15/06, 10:16 PM
vnjagvet said...: No, that is not what Novak reported. He reported, she was "an Agency operative on weapons of mass destruction". The Complaint alleges in Paragraph 7 that she was "an operations officer in the Directorate of Operations".

While the Novak description is similar, it is not identical by any means. It may not even be accurate if the allegations in the Complaint are the only thing we have to go on.

Novak does not reveal either the fact that she was "an officer" or that she worked in the "Dicrectorate of Operations".

If it was those things that were classified, Novak's article did not reveal them.; 7/15/06, 10:32 PM
S said...: Seven machos, you have made me curious about something. For the moment, let's forget about Plame and Wilson and Bush and Cheney and Rove and Libby.

Let's say you are a super secret covert classified CIA spy. Let's say you are married and your wife, without consulting you first, publishes an op-ed piece in a major newpaper during wartime that is critical of the current administration's policy. Under that set of facts, which I acknowledge are different than the facts of Wilson and Plame's case, do you believe it would be appropriate and that you would deserve for administration officials to try to retaliate against your wife for publishing her criticism by telling newspaper reporters that you are a CIA spy?; 7/15/06, 10:45 PM
S said...: vnjagvet, let's say Plame's exact job title was "operations officer in the Directorate of Operations" and that her exact job title is what was "classified." Are you saying that because Novak didn't say her exact job title, no classified information was revealed, even though he may have more or less accurately described her job function? I don't think that dog will hunt, my friend. If what you're saying is true, there would have been no basis or reason for the CIA to have requested a DOJ investigation, and no reason for the appointment of a Special Counsel to continue the investigation.; 7/15/06, 11:04 PM
vnjagvet said...: Stephen:

You are putting too much stock in the CIA's referral. That is not evidence, my friend.

Nor is the fact that Fitzgerald was appointed.

There are political considerations which can explain both of these events. I am sure you understand that with your extensive litigation experience in South Florida.

I keep coming back to my point. From the lack of specificity in the Complaint regarding that issue, I infer that the Plaintiffs are fudging that issue. When I have the goods as a plaintiff on a critical issue, and am in control of the facts, I generally make it clear in the Complaint. Especially if my lawsuit has political or public relations goals.

But that's just my quirk, I guess, and I recognize that others may operate differently.

It will be fun to watch this thing, won't it?; 7/15/06, 11:29 PM
The Exalted said...: a lot of lying liars in here

you think you can't be "covert" and have a desk job at langley? tell that to the CIA

you think the admin would correct the alleged "inaccuracy" of who sent wilson by using this secret source whispering campaign, rather than just have, um, the WH press secretary say "the vp did not send him?"

you think wilson + plame have earned "millions" and "are rich" from this affair? prove it.

you think plame deserved what she got b/c wilson blew it by writing an op-ed? newsflash -- wilson was already a public figure, it was his wife's actual job that was not public.

you think plame, a midlevel CIA agent, was the subject of the d.c. cocktail circuit? please. and, if this was the case, why would karl rove be telling novak about it?; 7/18/06, 3:46 PM