Sunday, July 16, 2006

Specter's FISA bill "must not pass"

* apparently my interview with sibel got buzzflashed. yay.

* attaturk gives a run-down of Bivens. In brief:
"No matter how I look at it, I just cannot see Big Time making it to the discovery phase. I know that sucks, I join you in "wishing" that wasn’t true, but sometimes the law wins out over what we desire (and in my line of business that happens a depressing amount of time). I just cannot see a court allowing a civil suit against a sitting Vice President for acts he committed while he was Vice-President. I foresee no "Cheney Exception", much as we might want one.

Now, as for Libby and Rove, that gets a lot more interesting, and I think there’s a good shot they’ll be around for a while."
* talkleft:
"Pending in U.S. District Court in San Francisco is a suit against AT&T accusing it of collaborating with the Justus Department in the illegal surveillance of U.S. Citizens.

Thursday, Sen. Arlen Specter (R-PA) introduced a bill to remove that case and any like it to the Foreign Intelligence Surveillance Court of Review in Washington where it could be heard in secret and only the Justice Department could be heard."
* wapo ed:
"SENATE JUDICIARY Committee Chairman Arlen Specter (R-Pa.) has cast his agreement with the White House on legislation concerning the National Security Agency's warrantless surveillance as a compromise -- one in which President Bush accepts judicial review of the program. It isn't a compromise, except quite dramatically on the senator's part. Mr. Specter's bill began as a flawed but well-intentioned effort to get the program in front of the courts, but it has been turned into a green light for domestic spying. It must not pass.
This week a remarkable congressional debate began on how terrorists should face trial, with Congress finally asserting its role in reining in overbroad assertions of presidential power. What a tragedy it would be if at the same time, it acceded to those powers on the fundamental rights of Americans."
* william kristol via glenn:
"The right response is renewed strength--in supporting the governments of Iraq and Afghanistan, in standing with Israel, and in pursuing regime change in Syria and Iran. For that matter, we might consider countering this act of Iranian aggression with a military strike against Iranian nuclear facilities. Why wait?

But such a military strike would take a while to organize. In the meantime, perhaps President Bush can fly from the silly G8 summit in St. Petersburg--a summit that will most likely convey a message of moral confusion and political indecision--to Jerusalem, the capital of a nation that stands with us, and is willing to fight with us, against our common enemies. This is our war, too."


oldschool said...

Kristol - "This is our war, too".

Boy, ain't that the truth.

I particularly liked (wrong word but it's early) the Israeli Ambassador to the U.N. throwing out the line about Lebanon being part of an "Axis of Terror". Translation - "whaddya gonna do, Georgie-boy, tell us that your Doctrine of Pre-Emptive War against badbadbad people doesn't apply any more?"

Ass-Hat Diplomacy, as it approaches adolescence, begins to appear to be something of a problem child.

oldschool said...

I tend to disagree with Attaturk's opinion about the extent of Cheney's immunity defense. IMO, one should look to actions by Cheney and then ask whether they fall within the scope of his duties as Vice-President. If they do, they are immune from suit - if not - he's wide open. For example, it would be hard to argue that Harry Whittington, shot in the face by a sitting VP, doesn't have a viable case for negligence against Cheney, since shooting utterly defenseless birds, and Texas trial-lawyers, would seem to fall outside of the constitutionally-envisioned duties of a VP, even a Republican mad-man of a VP.

As far as I know, the duties of a VP include only being ready in the bull-pen shoud GWB choke on a chicken wing, and presiding over the Senate. Later, Attaturk suggests that the standard to be used is whether Cheney could have engaged in the questioned action if he were not the VP - that is, that it was only by virtue of his holding the office that he was able to engage in the complained-of conduct. If that is the correct standard, then the leaking of selected portions of the NIE might be immune - if such leaking is not found to be inherently illegal and thus incapable of being within the scope of his duties (I've never bought into the claim that the VP can instantaneously declassify without going through the prescribed procedures for declassification, fwiw). Cheney will claim that his actions were all for the purpose of getting the admin's position 'out there'. i.e., by leaking cherry-picked portions of the NIE, he was acting w/in the scope of his VP duties - and, if said leak is not illegal, it's a good defense. But, to the extent that he is involved in actions to attack the messenger (and the messenger's wife?) separately from merely 'getting it out there', he's open to suit. When one looks at the notes in the margins of the Wilson column and the 'suggestions' written thereon, I see nothing indicative of VP-ishness. Those are the thoughts of a political operative. They could just as easily have been the brain-child of Mehlman, Matalin, etc. Hard-ball politics has always been the claim; fine - then hard-ball politics it is, and thus, not within the scope of VP duties.

That having been said, and being once again in full ramble-mode, I'm concerned about statute of limitation issues. Turns out that the Wilsons' claims, per Bivens were subject to a 3-year statute (as opposed to the 4 year period I erroneously suggested earlier). The Wilsons' atty, on Olbermann, said that the timing of the suit was done to beat the Novak column by at least one day. But, as noted here and elswewhere, substantial rat-fucking and devious machinations had already occurred before that column was published. Apparently, the theory is that the Novak column was the culmination of the admin's continuing strategy, if not the utter end-game of such. Hence, an opportunity for all defendants arises: "even if what you say is true, everything I did was done before July 13, 2003, and is thus time-barred". (except for Rove, who can be tied, by virtue of leaking to Novak, directly to and through to the Novak piece on July 14, 2003). I'm not a time-line expert, maybe there's more after that which is actionable, but it would have been a lot safer to have filed this suit using a much more conservative date - say, Wilson's actual trip to Niger, at the earliest, or the date of his WaPo op-ed at the latest. Tying the timing of his filing to Novak's column seems not only odd, but dangerous. I understand not wanting to seem litigious and greedy, but that looks like some irresponsible lawyering to me.

Don said...


With regard to the statute(s) of limitations, where there is continuing whitewash activity by the usual GOP talking heads, and indeed, the Wilsons are still under attack by those same talking heads and others, can the point be made that the conspiracy aspect of the case (at least) does not constitute a point or points in time passed, but is indeed still ongoing?

LeeB said...


Good one! Alert Lukery's house is becoming a hotbed of vocabulary evolution!

Now, about the statute of limitations . . .

If a person runs a red light and smashes their car into another vehicle, the police report and citations, if any, pretty much nail down the time period allowed for the injured party to file claims for property loss or personal injury.

In some other kinds of cases, it can begin to run when an offending act is discovered. When a criminal investigation has produced evidence of a conspiracy that, in turn, led to the event that caused the losses to the victims, we may have more information about when the offending conduct was planned. But, does that necessarily mean the victims of the plan should have an abbreviated window in which to file?

The Wilsons certainly had no reason obvious to us to believe anyone was leaking the facts about Valerie's NOC and classified employment to any members of the press up until the date the wretched Novak's column appeared in print. The Wilsons would not have suffered any harm at all if the leakers had never found a willing publisher.

It seems odd to me that an otherwise valid claim could be tossed out of court because the lawyers didn't file the claim prior to the anniversary date of the legal and non-tortious act of one of the victims - the publishing of Joe Wilson's op-ed in the NY Times.

Just my 2 cents . . .

oldschool said...

The date of the filing of the Wilsons' Complaint is not tied to the date of the publication of Joe Wilson's op-ed, which was July 6, 2003. Rather, it is tied to (following by 2 years and 364 days) the publication of Novak's piece, published July 14, 2003. However, in a general sense, the actions complained of are not of *causing* the Novak column, but are allegations regarding conduct which *resulted* (indirectly?) in Novak's column of July 14, 2003.That is to say, there is no allegation that the administration officials directed Novak to publish - but that their earlier tortious actions enabled him to do so. Novak is not a defendant, even as a John Doe.

In several instances within the Complaint, specific actions are complained of and specifically dated (most of which are between July 7 and July 12, 2003). What I am saying is that it doesn't make much sense to me to complain about actions which occurred within that narrow time period but to then file the suit 3 years and one day *after* the last specifically complained-of action.

Is this dispositive and will it lead to a dismissal of all claims? Not necessarily. For example, the Complaint, page 15, par. 32, alleges that multiple officials discussed Plame's employment prior to, and after July 14, 2003. But this bare assertion carries none of the specificity of the earlier claims, and kind of has the look of a CYA to me. In addition, the 6th Cause of Action alleges a conspiracy to conceal the existence of plaintiffs' cause of action. This is all well and good, but it leaves me wondering whether this 6th cause of action will have to be proved in order that a judgment on any of the other causes may survive. Does the entire complaint now hinge on the proof of the conspiracy alleged within Cause #6?

LeeB raises a good point in bringing up the general principle that the limitation period for a given cause of actions should not beging to run until such time as the plaintiff either knew or reasonably should have known of the existence of the tortious acts complained of. I would imagine, upon further reflection, that this is the reason for the July 13, 2006 filing date. That is, the theory would be that the Novak column was the first out-in-the-light-of-day event which should have alerted the plaintiffs to the existence of the torts committed. This does seem to be a reasonable position. But to carry LeeB's analogy a little further, if a person runs a red light and smashes into a car, and the owner of the damaged car was out of town and did not learn of the crash until the next day, does the statute begin to run on the date of the crash, or on the date that the plaintiffs gained actual knowledge? Unless the red-light running defendant caused the owner to be out of town, that statute begins to run on the date of the crash. At least I *think* that's how it would play out. But I don't really know. Ya know *why* I don't know? Because it never happens that way! No halfway competent attorney is going to wait that extra day to file such a case - it's stupid to even chance it - it just doesn't happen.

It certainly seems to me that it would have been *much* smarter for the Wilsons' attorneys to have filed this case somewhere before, say, July 7, 2006. I see this one-week delay as quite possibly causing an entirely unnecessary set of problems which could have been avoided by merely filing the thing one week earlier.

LeeB said...

Thanks, oldschool!

I wonder how much of the strategerizing over timing was influenced by Fitz's goals on the criminal side of this event. I have serious doubts that the Wilsons' attorneys just slapped this thing together late Wednesday afternoon. There must have been a fair amount of discussion around the issue of choosing the exact day.

No doubt the defendants will be treating us all to serious acrobatics as they use every theory they can muster - or create from thin air - to move for dismissal.

It will be interesting to see how it plays out. I'm hoping for some kind of nifty fireworks that leave Shooter, Scooter, TurdBlossom (and the assorted "Does", whoever they are) fuming 'round about the end of October.

lukery said...

oldschool and leeb - thanks for that.

very interesting.

i can only presume/hope that leeB is correct and that they had everything covered (re the timing).

re VP-ishness, oldschool makes a good argument. let's hope that sticks.