New developments in Jill Kelley lawsuit

2:01 PM, Sep 25, 2013   |    comments
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Tampa, Florida -- There are new developments in Jill Kelley's lawsuit against the U.S. government.

In a court filing today, the Justice Department says Kelley has failed to present evidence that the FBI and Pentagon flagrantly disregarded her privacy rights.

Kelley and her husband are suing to find out who leaked her name and emails to the media during the General David Petraeus scandal.

See also: Jill Kelley's connection to 4 key men in the Petraeus sex scandal

If a federal judge allows the lawsuit to proceed, the case could delve into the roles the FBI and other parts of the Obama administration played in the scandal.

In a statement to 10 News, Jill Kelley's attorneys say they will 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."

"The government's September 24 filing makes clear that the Justice Department, FBI and Defense Department don't get it," said Alan Raul, head partner of Sidley Austin LLP, the law firm representing the Kelleys. "Sadly, they appear to be little concerned with the privacy of innocent citizens who get caught up in out of control, overreaching government electronic investigations and the subsequent improper disclosure of confidential investigative material by senior officials and agents."

Read the Kelley's full statement below:

Response to DOJ's answer to the Dr. Scott and Jill Kelley lawsuit against the Federal Government

Jill and Dr. Scott Kelley filed suit on June 3 against the FBI, Defense Department and others in the Federal Government to vindicate their privacy rights.  The Federal Government leaked their names, defamed their reputation and exposed the Kelley's to a highly damaging media frenzy.  The Kelley's were the innocent victims of a cyberstalking incident.  After receiving the threatening email, the Kelley's (who are very happily married) did the right thing by coming forward as witnesses and providing evidence to the FBI.  Their intention was not only to protect their family against the stalker, but also to protect senior military, and public officials who also appeared to have been stalked. 

The Government did the wrong thing.  They adopted a "blame the victim" approach that prompted Government agencies to dig through the Kelley's private email accounts and then unfairly dragged the Kelley's through the mud.  If this egregious violation of privacy and email overreaching can happen to an honorable couple like the Kelley's, it can happen to any law abiding citizen. The Kelley's legal complaint seeks an apology and justice for themselves and their family.  They also hope their lawsuit can help prevent other innocent citizens from experiencing this same electronic overreach, and mistreatment at the hands of Government officials.

Instead of providing an apology with an acknowledgment of these indefensible behaviors, the Department of Justice (DOJ) filed a legal response on Tuesday that condones the Government's abuses.  DOJ's Motion to Dismiss unfortunately indicates that the Government is willing to defend the indefensible.  The wrongful conduct includes a press briefing by former Defense Secretary Leon Panetta, reported in the New York Times on Nov. 13, where he personally identified Mrs. Kelley and irresponsibly associated her with an investigation into a military officer.  Evidently DOJ is willing to condone this malicious leaking that exposed the innocent victims of a crime to false and damaging innuendo about their personal reputations.

DOJ does not deny in its motion that the Government leaked adverse information about the Kelley's, or that the Kelley's were damaged.  Rather, DOJ relies on the supposed fact that the FBI and Defense Department have "opted" their records out of Privacy Act protections.  Calling the Privacy Act and Stored Communications Act "two highly technical statutes," the motion states, without any embarrassment, that the Kelley's have no privacy rights because "the FBI has exempted its Central Records System, which contains investigative, personnel, applicant, administrative, and general files" from protection under the Privacy Act!  Significantly, however, DOJ does not even claim that the system of records relevant to the Kelley leaks was exempted, but only that "several" of the FBI and DOD systems of records are exempt from Privacy Act requirements.   DOJ argues, unbelievably, that the Kelley's simply "do not appreciate the broad scope of the law enforcement exception to that Privacy Act provision."

DOJ also argues that seizing the contents of Dr. Kelley's email account does not entail seizing records "about" him.  DOJ tries to defend the leaking by saying that maybe the leaked information was "acquired from non-record sources" and thus not "retrieved" by the Government officials from records protected by the Privacy Act.

Because this Government conduct violates the letter of the law as well as the high Government ideals represented by President Obama's "zero tolerance" policy against Government leaking and Attorney General Holder's policy to protect victims and witnesses of crimes, the Kelley's attorneys had written to the Attorney General on August 2.  They invited the Attorney General to consider whether it truly wished to defend the indefensible violations of the privacy of innocent citizens.  As stated in the Kelley's letter to Attorney General Eric Holder, "The Kelley's were wronged; Mrs. Kelley was subjected to cavalier, sexist treatment that violates the government's own procedures and regulations regarding the treatment of victims; and, ... they both deserve an apology and just compensation. In addition, Justice should reaffirm its confidentiality protocols, including with respect to criminal, investigative material shared with other agencies, and tighten adherence to your guidelines for victim and witness assistance." We implore DOJ to live up to the standard set forth in the Attorney General Guidelines for Victim and Witness Assistance which includes seeking justice for "the victims of and witnesses to crime."   A copy of the Kelley's letter to Attorney General Holder is attached to this statement.

As a result of this life altering experience, Mrs. Kelley has been inspired to become an advocate for privacy and security to protect the names and identities of victims of a crime, and fight to deter the government from violating the privacy rights of Americans by exposing the vast overreach in the government's search through private emails.  She will continue to advocate the constitutional rights to privacy of every law abiding citizen, so what happened to her family will never happen again. 

The Kelley's 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. The Government's September 24 filing makes clear that the Justice Department, FBI and Defense Department don't get it.  Sadly, they appear to be little concerned with the privacy of innocent citizens who get caught up in out of control, overreaching government electronic investigations and the subsequent improper disclosure of confidential investigative material by senior officials and agents.

-- Alan Raul, head partner of Sidley Austin's privacy, data security and information law practice and lead lawyer on the complaint.


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