Plame loses appeal of suit against Cheney over leak

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By Tom Ramstack

Former CIA agent Valerie Plame Wilson and her husband on Tuesday lost an appeal in their lawsuit against top Bush administration officials, but their attorney says another appeal is likely.

Mrs. Wilson, the wife of former Ambassador Joseph C. Wilson IV, sued Vice President Dick Cheney and others for violating her privacy, saying they leaked her name to the media. Syndicated columnist Robert Novak identified Mrs. Wilson in a July 14, 2003, column as "an agency operative on weapons of mass destruction."

A week earlier, an essay written by Mrs. Wilson's husband and published in the New York Times said the Bush administration exaggerated stories that Iraq was trying to purchase enriched uranium from Niger to justify a pre-emptive military strike against Saddam Hussein's regime. In his column, Mr. Novak identified Mrs. Wilson as the source of information for her husband's essay.

In its ruling, the appeals court said the Wilsons assumed the risk that their covert activities might be disclosed when they agreed to work as federal employees. As a result, they had no constitutional claim, and the federal officials were immune from their lawsuit.

"I think the court of appeals clearly erred," said Erwin Chemerinsky, the Wilsons' attorney. "The court of appeals decision leaves Valerie Plame Wilson and Joe Wilson with absolutely no remedy for their constitutional claim."

"I'm sure there will be further appeals but we haven't discussed what will happen next," Mr. Chemerinsky said.

White House spokesman Tony Fratto said, "I think they have avenues of appeal. We wouldn't be commenting on this while it's in litigation."

The Wilsons sued Mr. Cheney, former senior Bush administration adviser Karl Rove, Mr. Cheney's former top aide I. Lewis "Scooter" Libby Jr. and former Deputy Secretary of State Richard L. Armitage. The case was dismissed July 19, 2007, but they appealed the next day to the U.S. Circuit Court of Appeals for the District of Columbia, which dismissed the appeal on Tuesday in a 2-to-1 decision.

Mrs. Wilson said the Bush administration officials violated her Fifth Amendment rights to equal protection, privacy and property. Mr. Wilson also sued for a violation of First Amendment free speech, saying he was punished unfairly when his wife's career was damaged in retaliation for his newspaper essay.

Mrs. Wilson retired from the CIA in December 2005 after her identity was published. She apparently had a 20-year CIA career, but the exact date she was hired and the nature of her work remains classified. Mr. Wilson was an ambassador to two African nations between 1992 and 1995 and served as a diplomat in Iraq.

The appellate court also said that to the extent her claims "are inseparable from her public employment, Ms. Wilson has no constitutionally recognized interest at stake." The court dismissed Mr. Wilson's claim for similar reasons.

The court also reasoned that national security could be jeopardized if the Wilsons are allowed to sue.

The ruling said the Wilsons could try to sue under the federal Privacy Act, but that the act does not apply to the offices of the president or vice president.

Judge Judith Rogers, who was appointed by President Clinton, partially dissented in the ruling.

Regarding a national security risk if the Wilsons sue, she wrote, "The cat is out of the bag as Ms. Wilson's cover has already been compromised. ... Besides, courts regularly entertain cases involving CIA agents, confidential information and even matters relating to national security."

The U.S. Supreme Court is the only other court available for another appeal.

Each defendant in the lawsuit was investigated as part of a grand jury probe looking into what became known as the Plame affair. Mr. Libby ultimately was convicted on charges of perjury, obstruction of justice and making false statements to federal investigators.

President Bush later commuted Mr. Libby's prison sentence.