When the CIA replaces your coffee table . . .
Judge Royce Lamberth’s 14-page ruling in Horn v. Huddle is a page-turner.
In a legal case that has dragged on since August
1994—terminated ten years after it began, resurrected in appeals court, used to
be seal versus seal but those days
are gone—D.C. District Court’s Lamberth rejects yet another government assertion
of a state secrets privilege in a CIA-related matter. Former DEA officer
Richard A. Horn filed the lawsuit, suing former State Department official
Franklin Huddle and a former CIA officer who allegedly bugged his apartment
back in the early 1990s when all three were stationed in
From the judge’s footnote:
“As evidence of his claim, Horn points to a cable
transmitted by Huddle, which contains quotation marks and which Horn claims
quotes him verbatim, as well as a suspicious entry into his apartment when,
unsolicited, his government-issued rectangular coffee table was swapped for an
oval replacement while he was out of town.”
Talk about subtlety: Hard to imagine the mere human mind
that could penetrate a maneuver like that, someone swapping out your coffee
table while you were gone.
Anyway—all three men were involved in sensitive
activities in
Lamberth, as he points out in his summary, originally
concurred with this argument and dismissed the case, but was partly reversed by
the appeals court. Both courts protected the identity of the defendant CIA
officer under the impression that he was covert. However, both Lamberth and the
appeals court were jarred when this easy claim was retracted because it was
untrue:
“As if the course of this litigation were not circuitous
enough, new developments occurred after remand. The new Department of Justice
attorney in the case filed a notice with the Court that Defendant II’s identity
was not actually covert—the declaration stated that Defendant II (Arthur Brown)
had his covert status lifted and rolled back in 2002. Of course, no one from
the Office of General Counsel for the CIA (which was actively working on this
case) nor the defendant himself informed this Court or the Court of Appeals of
that fact.”
“As a result,” the judge continues, “this Court was
forced to admit that its determination as to defendant Brown should have also
been reversed because the Court of Appeals was operating under the mistaken
belief that Brown’s identity was classified.”
Thus, “This Court held that defendant Brown and at least
one attorney committed fraud on this Court and the Court of Appeals, reinstated
Brown as a defendant, and has taken sanctions motions under advisement.”
If it looks like a duck, and walks like a
duck . . .
But wait—there’s more. After all, defendants did not
maintain the state secrets defense unaided by higher-ups:
“This development demonstrated that Director Tenet’s
assertion of the state secrets privilege was no longer accurate as to at least
one material fact (the secrecy of Brown’s identity), and led the plaintiff and
the Court to question what portions of Director Tenet’s assertion still were
accurate and what information the government still believed was privileged.”
Plus, definitions of state secrets can change. Also,
Tenet is no longer CIA director.
“Accordingly,” in January 2009 “the Court required the
government to reassert the privilege if it chose to do so.” And do so it did,
but largely through “an in camera, ex parte
declaration of Director Panetta and another individual.” The original privilege
asserted by Tenet, who was awarded the Presidential Medal of Freedom, the
highest civilian honor, by President George W. Bush, no longer applies in this
case.
Skipping ahead to the end here, the District Court is
going to scrutinize government’s assertion of state secrecy by examining
redacted information in CIPA-like hearings. One factor in the case is “the
credibility of the government’s representations given all of the circumstances
of the case.”
“This factor,” as Lamberth writes drily, “weighs strongly
in favor of the plaintiff.”
More to come. Filings previously sealed in the case are
now viewable by the public, and several former government officials face
possible sanctions for fraud.
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