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July 19, 2007


EW--just saw on TPM that the judge dismissed Plame's suit against members of the Administration. Any info on this?

EW: Totally off-topic, for which I apologize, but Judge Bates just dismissed the Wilsons' civil suit against Libby et al. As I had predicted long ago based on a quickie-analysis of the complaint, the judge declined to create a Bivens cause of action fo rthe constitutional claims based on the fact that the Privacy Act extensively regulates the area. He tossed the tort claims for failure to pursue them under the Federal Tort Claims Act.


Are the Tort Claims dismissed with prejudice?

If not, do we know where they are in terms of Statute of Limitations?
For some reason, I thought they were out of time, but don't have a specific recollection

Sebastian - Yep, I said the same thing, among other numerous criticisms about the civil complaint. I was extremely perplexed at the phrasing of the complaint; it is almost as if it intentionally avoided inclusion of the parties defendant, causes of action and allegations necessary to make it past a motion to dismiss. I would literally have been shocked if Judge Bates had not dismissed it.

Plame document
https://ecf.dcd.uscourts.gov/cgi-bin/Opinions.pl?2007 .

p. 22-23 Vice President not an agency.
p. 31 Plame was covert.
p. 39 Armitage given all the powers of Secretary of State by executive order. ft note 8

And an attempt to hide the fact that the war party Has. No. Plan. B.

YES! That's brilliant! I'd *love* to see this in the press as much as I've lately seen the "Democrats have no plan B" message. As if the Dems need one. Not until January 20, 2009...

Loosehead: Excellent question. The opinion does not state one way or the other, and I haven't pulled up the judgment. The opinion states that the tort claims are dismissed for want of subject matter jurisdiction. There certainly is no retention of jurisdiction in case the Wilsons try to pursue the FTCA path. I think they're long out of time for that, however, so I don't think it would matter even if Bates had specified that the dismissal was without prejudice. If he's correct that the FTCA is the sole avenue, and I think he is, then I think they're toast there. I never did ascertain whether the defendants got Bates to stay discovery pending the outcome fo the motion to dismiss, but I assume he did. If he didn't, the Wilsons' lawyers should have noticed about ten depositions as soon as possible after filing the complaint so as to at least make the buggers sweat. But it doesn't look like discovery ever got off the ground.

And yes, you remember correctly: the tort claims under D.C. law faced serious statute of limitations problems. I had rather thought that that would be one of the easier ways for the judge to toss those claims. Amusingly (at least for me), I looked back and realized that I had raised the issue of the Privacy Act dooming the Bivens claim when I was musing on what the Wilsons' complaint might look like long before they ever filed it. http://thenexthurrah.typepad.com/the_next_hurrah/2006/06/dick_starts_to_.html#comment-18752810

I notice Edelman didn't include Afghanistan on his list of abandoned countries -- guess he didn't want to point out the times when his team has dropped the ball.

LHP - I opined quite some time ago that they must have perceived a statute problem, thus the thin pleading in the complaint. EW responded that she didn't think the Wilson's team (CREW, Chemerinsky et al) had statute concerns when drafting the complaint. They certainly do by now, even if they didn't then. Perhaps you could attempt some rescue through some "savings clause" or artifice, but i think they are done. They should have pled everything to start with, including most significantly individual defendants such as Novak, his syndicator, Hohlt, etc., so as to facilitate complete discovery before hearing of the dismissal motions.

Agree with bmaz here. A suit naming both Matalin and Hohlt was the way to go--at they least, they should have amended after the trial to add those two.

But it's not for lack of trying on my part...

Quoth bmaz: "I was extremely perplexed at the phrasing of the complaint; it is almost as if it intentionally avoided inclusion of the parties defendant, causes of action and allegations necessary to make it past a motion to dismiss." Bingo. I was particularly perplexed by the failure to sue under the Privacy Act itself. Now they might have waited too long for that as well (I just don't recall what the limitations period is for the statute) but if they were remotely serious about actually trying to litigate the case -- as opposed to practicing the litigation-as-very-expensive-press-release school of public relations -- they would have filed heir suit within the limitations period and pleaded some causes of action that actually stood a chance. To be sure, this lawsuit was going to be a stretch any way one did it, but I was surprised that the brain trust behind the complaint that included Erwin Chemerinsky (a least at some point)point) would have tried to navigate the minefield rather than march straight through it.

I recall that early on the Wilsons' lawyer was the plaintiffs' attorney who had won a damages case against a republican astroturf group that used a gay couple's wedding photo -- without their permission of course -- in their propagaganda and Chemerinsky's name showed up on the complaint in an "of counsel" capacity. He might have had about as much to do with the drafting of the complaint as Robert Bork did with Libby's great amicus brief. And not to run down that plaintffs' lawyer (whose name eludes me) although I'd want him on the team, when it comes to tricky questions of federal jurisdiction, Bivens remedies in novel situations, etc., I would want someone with serious federal jurisdiction credentials and federal civil rights litigation experience running the show.

Private letter to Hillary, meaning it either was leaked by Pentagon or released by her.

In either case, GOP and Hillary are united in wanting her to be the front runner

As a fellow who used to practice in civil rights litigation frequently, it is better to be a fool than an incompetent. If you can think of causes of action, counts and defendants for your complaint, and they are even remotely cognizable, you put them in the complaint and protect yourself and the client. If counts are bad, they will get dismissed or, if you later decide they are infirm, you can later dismiss on your own accord. Hell, you can file the suit and not immediately serve it while you figure things out further. Whatever. What you don't do is pin yourself in the bleakest legal corner possible by your own device at the outset.

Valerie Plame's Lawsuit Dismissed

By Matt Apuzzo. AP, Thursday, July 19, 2007; 4:37 PM link

U.S. District Judge John D. Bates dismissed the case on jurisdictional grounds and said he would not express an opinion on the constitutional arguments. Bates dismissed the case against all defendants: Cheney, White House political adviser Karl Rove, former White House aide I. Lewis "Scooter" Libby and former Deputy Secretary of State Richard Armitage.

If Cheney, Libby, Armitage and Rove were "acting within their job duties" when they deliberately disclosed CIA agent Plame's identity, what part of their job descriptions authorizes such unethical and criminal behavior?

UGGH - Will they make a hero out of Judy Miller or tell the truth?

First Plame Case Film Set to Roll -- With Kate Beckinsale as Judy Miller?
By E&P Staff, July 19, 2007 1:55 link

NEW YORK The first major Hollywood film inspired by the Plame/CIA leak case is ready to roll and, surprise, the main focus apparently will not be on a character based on Valerie or Joe Wilson, Bob Novak or even Patrick Fitzgerald -- but rather on Judith Miller. And she may be played by Kate Beckinsale, who is quite a few years younger than the real thing.
Edie Falco, fresh from "The Sopranos," is targeted to play the Bill Keller role as the editor of the jailed female reporter, Variety reports. Matt Damon would be the prosecutor, and up-and-comer
Vera Farmiga would play the dashing CIA agent [Valerie Wilson].

EW, what do you think is the likelihood of Bush attempting a recess appointment at DOJ while Congress is on vacation?


I THOUGHT that Reid was going to avoid full recess, to prevent just that from happening. Particularly given that their leverage over DOJ is the need to get some replacements approved, I would hope he still plans that.

EW, thanks.

From your lips to God (Reid's) ears. Got my fingers crossed.

Isn't Edie Falco playing the Jill Abramson role .. not the Bill Keller role?

As to your parting words in the post, forget "Plan B"; we need to just get out of Iraq altogether. Look at the moldy rotting hash they made with the vaunted "Plan A"; what in the world kind of hell could result from "Plan B"?

We'll never know bmaz, 'cause by all reports there is no Plan B. That would be a reassuring thought, given how bad Plan A was, if only there were some grown ups around to clean up after this mess.

"The proper response to such a lecture, it seems to me, is to point out what a hack Edelman is, to suggest that this is just Dick Cheney lying to the American people again. And an attempt to hide the fact that the war party Has. No. Plan. B."

Or, you could unleash a Keith Olbermann special comment.

If Eric Edelman was given a recess appointment as Undersecretary of Defense for Policy on August 9, 2005, and "The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session," why did Mr. Edelman's commission not expire in December 2006?
If Mr. Edelman's commission has expired, why is he writing to Senator Clinton?

Maybe it was Cheney who formed the letter and had Edelman sign it.

"He's the bright guy who first suggested leaking Plame's identity to rebut Joe Wilson."

Really? Where's the evidenceof that? He suggested leaking information about Wilson's mission - not Plame's identity. I do believe a list of talking points was drawn up to use in conversations with reporters - Plame was not on that list at all.

Of course, lying liars like you, emptywheel, continue to use this bait and switch. Wilson lied about his mission, and they dished out the information on the mission to reporters to rebut his lies. Wilson then had to write his public op-ed because he needed to cover his ass for lying to reporters, who he then accused of misquoting him.

Don't pretend to be speaking truth to power. All you're doing is choosing which liars you want to support and lie for.

So, bluebird, you think the ends justify the means? Because what we dont hear about is the real damage outing Plame caused in the undercover world..ie, the front energy company Brewster Jennings that Valerie Plame 'worked' for.

It took the CIA years to build this front company, develop connections, find reliable informants and because of this PETTY effort to 'discredit' Wilson (who was telling the truth-even Colin Powell has vouched for Wilson) all those years of effort were lost. The Middle East and the world are much less secure because of this unbelievable act.

Justify it all you want on these stupid trivial talking points. It doesnt even begin to cover the harm done by this administration outing their own CIA agent.

Since we all now know that it was Dick Armitage who leaked Plame's name and Wilson admitted to the 9/11 Comission that his claims in the NY Times Op Ed were untrue you would think someone on this page would notice that Dick Armitage did not like Bush or his administration, at all. So I guess the conspiracy loses luster when facts are interjected.

By the way Plan B is/was the Surge and it worked. Maybe I can read some more revisionist history here later,.

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