Once Again, the Federal Government Uses Valerie to Screw Joe

I’m not so much surprised that Judges Sentelle and Henderson dismissed the Wilsons’ appeal yesterday–I’m more surprised by the false ignorance through which they dismiss the Wilsons’ Bivens complaint (a Bivens claim allows a person to sue federal agents when they violate that person’s constitutional rights).

At the rhetorical foundation of Sentelle’s opinion lies the repetition of one of the biggest myths about the Plame leak–that Rove (and for that matter, Libby and his secret July 9 conversation with Novak) had nothing to do with Robert Novak’s article outing Plame, that Armitage acted alone.

In July, Libby talked to Judith Miller of The New York Times and to Matthew Cooper of Time magazine; Karl Rove talked to Matthew Cooper of Time magazine and to Chris Matthews, host of MSNBC’s “Hardball;” and Deputy Secretary of State Richard Armitage met with reporter Robert Novak. Armitage, who had learned of Valerie Wilson’s CIA employment from a State Department memo, told Novak that Valerie Wilson worked at the CIA on issues relating to weapons of mass destruction. Novak then wrote an article that was published in several newspapers, including The Washington Post and the Chicago Sun Times, on July 14, 2003.


The publication was the result of a disclosure by Deputy Secretary of State Armitage of information about an individual contained in State Department records.

Um, sure, the publication was the result of a disclosure by Blabby Armitage. But then, that State Department memo was written as a direct result of Libby’s own oppo research, so it was also the result of Libby’s attempt to gather dirt on Joe Wilson. And of course, Novak wouldn’t have written his column without the "confirmation" from Rove, who got his information from some other source; he has always denied seeing the INR memo. So it is likely that that letter also was the result of Dick Cheney’s own efforts to collect information with which to embarrass Wilson. (Novak’s column was also the result of the Off the Record club brokering the leak, too–private citizens who could have much more easily been sued, but that’s a weakness in the Wilsons’ suit, not the Court’s opinion.)

I suspect there’s a reason for the Court’s feigned ignorance here. It’s that they want to dismiss any Bivens claim based on the availability of an alternate remedy–the Privacy Act. Sentelle argues that Dick and Scooter and Karl are immune from the Privacy Act because they were in the Vice President’s and President’s offices, and therefore not in an agency subject to the Privacy Act. (Yes, that does mean that if Dick Cheney or his sidekick Mr. Germ leaked all the information about Hatfill, they would have been immune from suit there too.) But the State Department does qualify as an agency, and therefore Armitage could have been sued under the Privacy Act. By focusing on Armitage, then, the Court gets to point to the Privacy Act as a legitimate means of recourse, and therefore ignore the Bivens claim.

The first problem with this argument is that the Wilsons, unlike the plaintiffs in Davis and Bivens, can seek at least some remedy under the Privacy Act. At the least, as they concede, Valerie Wilson has a possible claim based on the disclosure by Deputy Secretary of State Armitage because the information disclosed about her and the agency involved in the disclosure are subject to the Privacy Act’s restrictions.

Which brings us to the other problem–one Janice Rogers Brown Judith Rogers points out in a dissent. Rogers points out that her colleagues have dismissed Joe Wilson’s claims based on the logic they use to dismiss Valerie‘s claims, even though Joe does not have recourse to the Privacy Act here.

Because Mr. Wilson is a person for whom Congress has “inadvertently omitted damages remedies” … the Privacy Act is not a comprehensive remedial scheme as to him and implying a Bivens action for his claims would comport with precedent. … To avoid this result, the court lumps the Wilsons’ claims together, describing Mr. Wilson’s claims as seeking damages for unconstitutional action taken in regard to information that once was covered by the Privacy Act. … But the Constitution protects individual rights, not information, and whether Ms. Wilson might have a Privacy Act remedy is irrelevant to Mr. Wilson’s independent claims based on public disclosures that were steps removed from internal government transfers. … The days when husband and wife were considered as one at law are long past. [my emphasis, citations removed]

Ironically, following Roger’s logic, Sentelle has replicated almost the same kind of sexist bullshit that Cheney and friends were using when they tried to suggest Wilson was some kind of wuss who needed his wife to score him key boondoggles to Africa. They’re arguing that a husband must sacrifice any recourse for the violation of his constitutional rights if his wife has lost any recourse based on a different claim. So not only can Cheney and friends leak information from government records with impunity, but their "not an Agency" line exempts them, therefore, from respecting the First and Fifth Amendment rights of affected spouses, too.

Update: bmaz makes an important point below, which is that,

the court must take the facts as alleged in the complaint. I’m afraid that part of the factual problem we face here is due to the way the facts were pled in the complaint. You could have seen this coming a mile away. The plaintiffs should have pled a much more aggressive interpretation of the facts and made the defendants controvert them.

I just reread the Wilsons’ appeal, and boy oh boy is bmaz right, particularly with respect to Rove’s role as confirming source for Novak. By the time this appeal was written, Novak’s trial testimony was available, naming Rove, not to mention the September 2004 Fitzgerald affadavit, which states,

Karl Rove later confirmed that information in a July 9 phone call.


Novak expressed to Rove his surprise that somebody like Wilson (whom he viewed as a partisan Democrat) had been sent on the mission. Novak then brought up to Rove the fact that Novak had heard that Wilson’s wife had worked at the CIA, and had suggested her husband for the mission.


In response to Novak’s statement about Wilson’s wife, NOvak recalls Rove saying "oh, you know about that too." Novak too that comment as a confirmation of the information, and so Rove became his second source.

So why not include the evidence tying Rove directly to the Novak leak?

That doesn’t excuse Sentelle for ignoring a whole bunch of other facts in the appeal (such as the numerous times Libby leaked this), not to mention his use of "talked to" rather than laying out that Rove and Libby both shared Valerie’s identity before Novak’s column came out. But bmaz is absolutely right that this appeal sets up just what happened, an undue focus on Armitage, away from Cheney and Libby and Rove.

Update: Fixed my reference to the wrong judge.

  1. emptywheel says:

    You know, I thought it would be futile to appeal this, based on the weakness of the way the suit was structured in the first place. But Janice Rogers Brown makes a good argument about Joe, and also dismisses Sentelle’s concerns about secrecy enitrely.

    • bmaz says:

      Not to mention that state secrets was never even asserted; making that a special consideration militating against permitting the case to go forward is absurd.

      • stryder says:

        what was this about?

        {Bush v. Lucas, 462 U.S. 367, 388 (1983),} the district
        court concluded that it could not imply a Bivens remedy here.
        The court further concluded that creating a Bivens remedy in this
        case would be inappropriate because, if litigated, the case would
        inevitably require the disclosure of sensitive intelligence

      • emptywheel says:

        Yeah, their introduction of it is one of the things that makes me think Sentelle got bored of seeing Plame-related appeals and just went crazy.

        What I don’t understand, though is why Henderson, after seeing how much better JRB’s opinion was, didn’t flip on her vote.

  2. Leen says:

    Another decision in our courts for justice (choke). This should increase recruitment for the CIA and other intelligence operations. The clear message .. sacrifice for the National Security of your country (Valerie Plame/Wilson) but if an administration decides to conduct “a hit job” on you, you will be sacrificed without question or accountability.


  3. bmaz says:

    First off, I would like to say that I am floored by the separate opinion filed by Janice Rogers Brown. It is as good as anything I have ever seen from her, and totally unexpected; especially on this case and fact set. Frankly, I have always agreed with her analysis as to Bivens allowing more actions than it is commonly interpreted as allowing. The fact of the matter, however, is that Federal courts are historically notorious for being miserly in the scope of what Bivens allows, and the majority opinion is what you would commonly expect. The Courts have always contorted themselves in the most amazing ways to deny any expansion or creativity with Bivens jurisdiction, and those decisions have held up in spite of the fact, that Brown succinctly points out, that Bivens itself doesn’t demand that strict and narrow interpretation and, in fact, probably suggests the opposite. I am blown away that I am saying this, but Janice Brown must be commended for her minority opinion.

    Secondly, as to Marcy’s analysis on the facts in the main post, one problem with that is that the court must take the facts as alleged in the complaint. I’m afraid that part of the factual problem we face here is due to the way the facts were pled in the complaint. You could have seen this coming a mile away. The plaintiffs should have pled a much more aggressive interpretation of the facts and made the defendants controvert them. One, because, as the court notes, the plaintiff’s facts must be taken as true for purposes of this motion, and two, if the defendants start challenging them much, that puts the case in a posture where discovery arguably should be permitted; i.e. a summary judgment posture as opposed to a Rule 12(b) dismissal posture. Much more favorable in that you get discovery.

    • jayt says:

      How did this case ever get into a posture whereby it could be dismissed *without* a 12(b)(6) Motion?

      And isn’t there still a factual question remaining as to whether the defendants were acting within the scope of their (legal) authority?

      At least, I believe it should be a question of fact…..

  4. earlofhuntingdon says:

    Thank you for pointing out once again that the leaks about Valerie Plame were many, part of a concerted campaign to embarrass her and her husband. Something the TradMedia dutifully ignores.

    Armitage’s disclosure to the press may have been the first in time, but only by happenstance. Other leaks to the press were apparently made earlier, but didn’t make it into print until Novacula’s column.

    Thanks also for making clear that Armitage’s leak is worthless without corroboration, a dynamic Rove knew well when he came up with his attempted disclosure-without-liability bullshit, “I heard that too”. Cheney’s people gave out corroboration to the press like Halloween candy.

    • Leen says:

      “part of a concerted effort to embarrass her and her husband” Embarrass? How about undermine her intelligence investigations, take down Brewster Jennings, threaten the lives of other CIA undercover agents (will we ever hear anything about that report?) destroy her career, endanger her and her families lives.

      I would put money on that Valerie or Joe could give a rats ass about the embarrassment factor

  5. bgrothus says:

    Interesting dissent from JRB, surprising? I recall her history, appointed by W over major opposition from the Dems, and some of the DFH contingent, I think.

  6. SouthernDragon says:

    Thanks Marcy, bmaz and all the other attorneys here. If it weren’t for you folks we would never know what was going on with this. NAL so I can only soak up the info to educate myself. Such an education its been.

  7. LiberalHeart says:

    EW, you really tick me off. You put up great posts that keep me reading when I should be working. Don’t you know I’m on a deadline? Cut it out.

    • emptywheel says:

      Can you put the deadline off? I leave for a road trip on Friday night, after which point it’ll primarily be bmaz’ fault if you miss your deadlines for the next week or so.

  8. Knut says:

    Hate to rake over old coals, but this weekend I was talking with an otherwise sensible Republican woman about the Plame affair, and she assured me (a) that the material was leaked by Novak; and (b)that Plame was never a serious CIA agent and (c) Wilson was a dummy and a fraud. I raised his face to face with Saddam in 1991, and she relented abit, saying maybe he wasn’t one then, but is now. There is no way these kool-aid drinkers will ever accept that their Republican government outed a deep agent and destroyed a critical espionage network.

    Otherwise, as I said, a very open and decent person, which tells you how deep that meme is installed among ‘thinking’ Republicans.

  9. bmaz says:

    Okay folks. I have a mea culpa here. And it explains a whole hell of a lot. Whatever news piece I first saw on the Plame appeal decision named Janice Rogers Brown as the dissenting opinion. I got that locked into my beady little skull and, even reading completely the full opinion, didn’t notice that it is NOT Janice Rogers Brown that made the separate opinion, but instead Judith Rogers. Huge difference. Now the opinion makes sense, this is the type of position you might expect from Rogers; it was not what you would expect from Rogers Brown. My bad. Sorry.

    Jayt – It was a 12b6 based motion. My point was that if the defendant materially controverts the plaintiff’s facts on a 12b6 motion, that usually turns it into a summary judgment motion where you can at least seek leave to conduct some discovery. In this case, discovery was half the goal.

    • emptywheel says:

      The argument being that if the Wilsons had argued that circumstantial evidence indicates Cheney ordered Libby to out Plame, then Cheney would have been stuck trying to refute that, right?

      • bmaz says:

        Yeah. I would have just flat out stated it as fact and supported it with the evidence you have discussed so often as to Libby’s admission, notes etc. If the defense then says “Ooh, that’s not true” you say “Judge it is a reasonable interpretation and inference, if the defense wants to controvert, I guess we better have full discovery and briefing on it then in a summary judgment context”.

  10. skdadl says:

    I’ve just read the section on DC “scope of employment” law (22-23/42), and my very straight hair is now all in curls. That was the part I was interested in understanding, but now that I’ve read it, I just don’t know what to say except that the law is wrong if that is the law, and it needs to be changed.

    Maybe someone smarter than I at copying from pdfs could quote the (pretty obviously) horrifying bits.

  11. plunger says:

    The OVP has become the law. Everything the VP authorizes anyone to do on his behalf, ALWAYS proclaimed to be in the name of “national security,” is legal, no matter how illegal it would otherwise be for mere citizens.

    You can’t even hold a preliminary hearing to determine the validity of a claim of “National security concerns,” because the hearing itself would require the discussion of national security issues at a level the public is not entitled to know, which the VP has unilaterally declared to be forbidden to discuss (since the strategies themselves are illegal).

    The OVP has become the world’s most powerful office, above every law in the world. Anyone inside his sphere of influence whom he chooses to immunize with his powers shall be protected from prosecution of any and all crimes they may commit on his behalf.

    Cross him, and you will find yourself subject to the laws of the land, with the full warrantless wiretap revenge of King Dick wielding the awesome power of the US Intelligence community against you.

    Welcome to the USSA. Your papers please.

    • Hmmm says:

      OT — But wrt this…

      Welcome to the USSA. Your papers please.

      ..and wrt the Dem party shooting, I trust everyone is aware of the other extreme unpleasantness in Arkansas?

      Officers armed with military rifles have been stopping and questioning passers-by in a neighborhood plagued by violence that’s been under a 24-hour curfew for a week.

      …The council said those living in the city want the random shootings and drug-fueled violence to stop, no matter what the cost.

      “Now if somebody wants to sue us, they have an option to sue, but I’m fairly certain that a judge will see it the way the way the citizens see it here,” Mayor James Valley said. “The citizens deserve peace, that some infringement on constitutional rights is OK…”

      ACLU response here, Dkos commentary here.

      Somehow I’m sure we’ll soon learn why these are both HRC’s fault.

  12. MsAnnaNOLA says:

    To our lawyers in the comments…is this over? Will they appeal? Isn’t there some way to hold someone accountable for this horrible action?

  13. lllphd says:

    shades of knoxville UU church massacre:


    and, as a sort of related side to knut’s highly propagandized republican friend, why have slimed dems – from kerry to wilson to obama to you name ‘em – not been suing these folks for slander? john dean pointed to a reason why kerry could well have done so, finding a contradiction in the swiftboat book that showed they knew they were lying.

    i mean, if freakin’ tom cruise can do it, why not the dems? i’d donate to that.

    that, and bring back the FAIRNESS DOCTRINE!!

    that’s where the big slide into propaganda oblivion started, right there.
    (pun intended)

    and now it seems, libruhls are fair game.

  14. lllphd says:

    oops. apologies; did not realize the full url would not show up in the comment.

    seems a gunman has shot the chair of the dem party in arkansas. he’s in critical condition.

  15. JohnLopresti says:

    One of the interesting parallel events was the “tort reform” efforts Republicans were nudging thru congress and DoJ itself was promulgating via federal register rulemaking in late 2003.