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 Rangoon, Burma.

 

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 Burma, back in 1992 and 1993, and plaintiff wished to show that defendants “had the capability, opportunity, and motive to surveil the plaintiff.” The government--represented under three administrations by now--“has intervened and asserted the state secrets privilege.”

 

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 However, both Lamberth and the appeals court were jarred when this easy claim was retracted because it was untrue: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.