Water Man Spouts

Sunday, November 19, 2006

Scooter & the Civil Case

"Valerie Plame has several potential civil causes of action."
--Worse Than Watergate; John Dean; Page 174

On Tuesday, November 14, lawyers for VP Dick Cheney, I. Lewis Libby, Richard Armitage, and the United States Department of Justice filed Motions to Dismiss the civil suit of Joseph and Valerie Plame Wilson. The case (1:06-cv-01258-JDB) is being heard in the US District Court for the District of Columbia, by Judge John D. Bates. While we should take interest in all of the motions, because the various defendants are in different positions in facing the Wilson’s claims, today I thought it might be fun to start with Mr. Libby’s three 11-14 filings. Let’s take a brief look at the others, and then focus on Scooter.

The DoJ, Cheney, and Armitage filings have been reported on in the news media. The Department of Justice filed, because of general concerns that members of the Executive branch could become entangled in civil cases in the future. The previous protections were, of course, reduced by the republican attempts to derail the presidency of Bill Clinton in the 1990s.
Cheney’s legal defense reportedly focuses primarily upon some of the Constitutional issues involved. In the upcoming weeks, I hope we can examine his position closely.

Mr. Armitage, who had recently expressed sympathy for any harm his "leaking" may have caused the Wilsons, has changed his tune. His filing notes, "This case is a political exercise masquerading as a civil lawsuit. Plaintiffs Valerie Plame Wilson and Joseph Wilson apparently seek to score public relations points through the presentation of this lawsuit."

I have not found any record of a response by Karl Rove at this point.

Now for Scooter Libby. His attorneys filed three documents: {1} a Motion to Dismiss (2 pages); {2} a Memorandum of Points and Authorities in Support of the Motion to Dismiss (37 pages); and {3} the Proposed Order (2 pages). The Motion briefly states the four positions of Team Libby on the need for the judge to dismiss the case as lacking merit, and the proposed order is a formality. The interesting document is the memo of points and authorities.

The Motion to Dismiss states the Wilsons raise four Constitutional under the Bivens v Six Unknown Agents of the Federal Bureau of Narcotics case; they call the Wilson’s case "novel Bivens claims" that are unsupported by law. They also call the Wilson filing "untimely." Next, they claim that Scooter is entitled to qualified immunity, because his activities were entirely in the scope of his employment. And last, they claim that Joseph Wilson lacks standing in the case, because he had no concrete injury.

The memo attempts to support that. The table of contents attempts to overwhelm, by listing 84 cases and 6 statutes that Team Libby claim support their position. These range from Nixon v Administrator of General Services, to Penthouse v Meese.

They begin by stating on page 1 that "… the allegation that Mr. Libby had anything to do with (the Novak article) is preposterous." However, this is at best an attempt to mislead, because the Wilson case is not limited to Novak’s sources, nor does it claim Libby leaked to Novak.

In a rare example of honesty, Team Libby notes on page 2 that Ambassador Wilson’s trip to Niger was as a result of a CIA request. Their positions go downhill from there.

On page 4, they claim that the federal courts cannot "expand" the Bivens case, because the US Supreme Court has refused to allow such expansions. VP Cheney’s Motion makes this same claim. However, as the judge will be aware, the US Supreme Court has twice allowed the expansion of Bivens to meet unusual circumstances. I suspect that the Wilsons can argue that argue that having the Office of the Vice President involved in a conspiracy to expose a CIA operative is rather unique.

But Team Libby takes a different position: "The impropriety is further heightened by the fact that this case deals with sensitive matters of national security and classified intelligence procedures best handled by the executive rather than the judicial branch." (page 4) Of course, the judicial branch is already handling a case of multiple criminal charges against Scooter Libby, because of the improprieties in the executive branch’s mishandling of the situation.

The claim on the timing of the case is interesting. The defense claims that Bivens has to have the same one year limitation as similar cases in the state courts. Again, I do not think the courts will find many cases similar to the Wilson’s.

Team Libby claims the OVP’s operation against the Wilson’s did not have a "chilling effect" on free speech, because Joseph Wilson has continued to speak out. Two things stand out: First, Wilson isn’t the average person – he continued to "speak out" even when Saddam threatened him at the beginning of the Gulf War. Second, as dean noted in Worse Than Watergate, "It also sent a message to the intelligence community that if you mess with this White House, we will mess with you, which they did by attackin Wilson’s wife." (page 171)

They also attempt to frame the case as an "employee vs supervisor" issue. It’s not. It is not a matter of an employee in a department being denied a promotion because they spoke out against their supervisor. It seems dishonest for Team Libby to try to take this position.

They also claim that the secrecy involved in the CIA is only for the benefit of the Agency, not the employees. This seems a rather limp claim, that does not deserve a dignified response. However, for the Wilsons’ attorneys, it provides an opportunity to knock the ball out of the park.

On page 14, they again claim that "Matters of espionage are uniquely for the Executive’s consideration, and beyond the judiciary’s capacity." Considering that people connected to the OVP are connected to the neocon/AIPAC espionage scandal – which is presently being heard in federal court – one can only shake their head upon reading this. They continue with the curious claims on page 19, where they demand that any "inquiry (be) objective and context specific. It ‘must be undetaken in light of the specific context of the case, not as a broad general position’." This is in reference to possible immunity for Scooter. However, from a casual reading of the Wilsons’ complaint, one clearly recognizes that they are suing for the very specific actions of those listed. There is nothing broad or general about the case.

And on pages 24-26, they claim they did not violate Valerie Plame Wilson’s privacy, because the information they leaked was not of a personal nature. This seems unlikely to convince an objective person.

In the next few weeks, we will continue to examine the civil case, as well as updates on the Libby criminal case.


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