The Department of Justice has asserted that a husband and wife who say they were smeared in the sex scandal involving Gen. David H. Petraeus have failed to establish grounds for their lawsuit — an assertion that brought an immediate and angry response from the plaintiffs’ lawyer and indicated that a settlement is unlikely.
In a motion filed on Tuesday in U.S. District Court for the District of Columbia, the DOJ asked that the suit brought by Scott and Jill Kelley of Tampa, Fla., be thrown out because it does not present facts that, even if true, would meet “the substantive and procedural requirements of the two highly technical statutes” on which the Kelleys base their claims, the Privacy Act and the Stored Communications Act.
At one point, citing the plaintiffs’ quotations from the Privacy Act of 1974, the DOJ seems to sniff at the Kelleys’ claims as mere “parroted allegations.” Webster’s defines the verb “parrot” as “to repeat or imitate, especially without understanding(emphasis added).
Even if the DOJ phrasing was not meant as a gibe, the Kelleys’ lead attorney, Alan Raul, reacted with indignation to the motion. He said the department is apparently acting “without any embarrassment” even though it is “defending the indefensible” and adopting a “blame the victim” approach to the entire affair. Furthermore, Raul said, the DOJ seems to be forgetting the “no leak” stance taken by President Barack Obama and Attorney General Eric Holder.
As recounted recently by Main Justice, Jill Kelley was instrumental in revealing that Gen. Petraeus was having an affair with Paula Broadwell, his younger protegee and biographer, an indiscretion that forced him to quit as head of the Central Intelligence Agency, ending what had been a stellar military and civilian career.
Jill Kelley had been receiving threatening emails from Broadwell, who apparently regarded her as competition for Petraeus’s affections — totally without reason, according to Raul, the chief privacy-law specialist at Sidley Austin LLP, who has described Jill Kelley as happily married to Scott Kelley, a surgeon. Gen. John Allen of the Marine Corps, who had been top American commander in Afghanistan, was the recipient of an email from Broadwell that disparaged Kelley. While Allen was cleared of wrongdoing, he chose to retire anyhow.
In their complaint, the Kelleys, who once enjoyed a rich social life with military people in Tampa, accuse the FBI, its recently departed director, Robert S. Mueller III, the Department of Defense and unnamed persons of wrecking their lives by treating them as possible wrongdoers in the Petraeus mess, rather than as victims. The Kelleys contend that the defendants violated their privacy by leaking selective, and sometimes downright false, details about their lives.
In its response filed on Tuesday, the DOJ uses language that is admittedly technical, and no doubt appropriate for a dismissal motion at this stage of a suit. For instance, it cites a 1984 ruling by the Court of Appeals for the District of Columbia Circuit that the Privacy Act, enacted in response to the Watergate-era abuses, “does not make the government strictly liable for every affirmative or negligent action that might be said technically to violate the Privacy Act’s provisions.”
At other points, the DOJ motion cites court holdings that an official who discloses information contained in agency files does not violate the Privacy Act if he or she acquired that information from an outside source. And the motion draws a distinction between an obligation to “establish safeguards” for material considered private and to actually “safeguard” that material.
The motion also notes that the FBI and Department of Defense have the power to exempt some of their record-keeping from privacy statutes, and that courts have traditionally been reluctant to interfere with such self-exemptions.
The DOJ has not yet responded to what is arguably the most startling assertion in the Kelleys’ complaint: that Jill Kelley was spirited from her home in July 2012 by FBI agents who drove her around, badgered her with questions about Petraeus and Allen, then dumped her at the Tampa airport.
Raul, the Kelleys’ lead lawyer, had previously welcomed the DOJ’s requests for more time to respond to the suit, interpreting the requests as a signal that the government was taking the case seriously. But in reacting to the DOJ’s response to the suit, he sounded anything but conciliatory. “The Kelleys have instructed their lawyers at Sidley Austin LLP to continue to prosecute the privacy action against the government so that justice can be done and that other citizens may feel safe in coming forward to the government with evidence of crimes,” he said.
How the Kelleys’ lawsuit will play out, and who may get burned, is anyone’s guess. For now, what seemed at first to be a sideshow to the Petraeus affair smolders on, like an ember deep in a coal bin.