War of Words Between Sen. Dianne Feinstein and CIA Is Empty Rhetoric

Richard Horn Case Proves CIA Deception, Ultimate Congressional Acquiescence Are Business As Usual

The current flap between the CIA and US Sen. Dianne Feinstein, chair of the Senate Select Committee on Intelligence (SSCI), echoes a prior, little-known dust-up between the spy agency and a former DEA agent, Richard Horn, who likewise accused the CIA of illegal spying, manipulating official documents and lying to outside official parties.

In the case of Feinstein and the SSCI, the flap is over the Senate committee’s investigation into the detention and interrogation practices utilized under the Bush administration in pursuing the so-called war on terrorism.

Earlier this week, Feinstein, normally a staunch defender of the nation’s intelligence agencies, uncharacteristically lashed out publicly at the CIA. She accused the agency and its top lawyer of illegally spying on the Senate staff charged with investigating the Bush-era terrorism practices, of seeking to intimidate the Senate committee by asking the Justice Department to investigate those same staffers based on what she describes as “inaccurate information” provided to the Justice Department, and of previously removing hundreds of documents from the computers being used by Senate staff.

Although Feinstein did not publicly identify the CIA lawyer accused of orchestrating the alleged attack on the Senate staff — via his referral of charges to DOJ — White House spokesman Jay Carney this week confirmed that it was Acting CIA General Counsel Robert Eatinger.

The Senate staff were utilizing secure computers set up by the CIA that allowed them to examine millions of documents to prepare a report on the terrorism-detention and interrogation program — a still-classified, 6,000-plus page report supposedly completed late last year. At the heart of the conflict, according to media reports, is a document discovered by the Senate staffers during its investigation of the CIA records that allegedly is quite damaging to the agency in its revelations about the detention and interrogation practices.

The CIA alleges the Senate staffers illegally hacked into CIA computers to obtain the document — creating the basis for Eatinger’s request for a DOJ criminal investigation. Senate staffers maintain the document in question was contained in trove of records made available to them by CIA for examination – whether on purpose or by accident is not clear.

Ironically, CIA attorney Eatinger, the public focus of Sen. Feinstein’s ire, was at the heart of some of the alleged abuses involving the Bush-era detention and interrogation program. He was one of the attorneys who provided “legal” sanction for the destruction of 92 videotapes of interrogations of al-Qaida suspects.

Repeating Pattern

The Horn case offers an eerie parallel to what is now playing out between the Senate Select Committee on Intelligence and the CIA. Both cases demonstrate the damage that is wrought when justice is delayed and Congress fails in its oversight responsibilities for the sake of advancing political expediency.

Narco News more than four years ago exposed the CIA lawyer Eatinger as an individual accused of providing "inaccurate information" to a federal court in order to protect CIA turf. Back then, Eatinger was accused of deceiving a federal judge in a civil case involving former DEA agent Horn — who claimed CIA and State Department officials illegally spied on him and sabotaged his efforts to rein in the heroin trade in Burma (now Myanmar).

Horn’s case was hampered for years because it was cloaked under national security restrictions — known as state-secrets privilege and invoked by the CIA in his case. The judge in Horn’s case (former FISA court member Royce Lamberth) agreed to apply state-secrets privilege because the CIA led the court to believe that a key player in the litigation, former Burma CIA Station chief Arthur Brown, was a covert agent in need of protection — when, in fact, his covert status had been rolled back in the midst of Horn’s 15-year legal battle.

Both the federal judge in Horn’s case and Horn’s attorney accused Eatinger, and several others, of being complicit in a deception for their failure to inform the court that Brown’s covert status had been lifted.

From a court motion filed by Horn’s attorney in June 2009 and referenced in a Nov. 14 story published by Narco News:

CIA … attorneys and/or former attorneys John A. Rizzo, Robert J. Eatinger and A. John Radsan attempted, through their declarations, to cover-up when they had knowledge of the reversal of [former CIA station Chief] Brown’s covert status.” [Emphasis added.]

The judge in Horn’s civil case, which was heard in federal court in Washington, D.C., in early 2009 ruled that the CIA had committed a fraud on his court by failing to reveal in a timely manner that Brown was no longer considered a covert operative. In fact, Brown had his official CIA “covert” cover lifted in 2002 — yet the government continued to claim Brown’s covert status was a basis for its state-secrets privilege claim in the Horn case until early 2008.

That false claim resulted in Brown being dismissed as a defendant from the case, per an appeals court ruling in 2007.

It was not until Jan. 31, 2008, when it became clear that Horn’s case would still continue despite Brown’s removal, that CIA officials, in the wake of a supposed internal investigation, finally informed Judge Lamberth that Brown’s covert status had been lifted in 2002 (some six years earlier) and that he was no longer covered by the state-secrets privilege assertion.

In fact, Brown filed a declaration with federal court in January 2009 alleging that in 2002 he had personally informed two CIA attorneys that his covert cover had been lifted — one of them being Eatinger.

From Brown’s declaration:

… I recall notifying, in person, two attorneys in the Office of General Counsel (OGC) Litigation Division, A. John Radsan [since retired] and Robert J. Eatinger about the change in my cover status in 2002, within a few months of the agency’s actions. [Emphasis added.]

From the inception of this litigation, OGC [the CIA Office of General Counsel] has advised me that it should be the channel through which I was to communicate any classified information regarding this case, including information to be communicated to Department of Justice lawyers. Accordingly, I relied on OGC to communicate the change in my cover status to the Department of Justice [whose lawyers were representing Brown in the Horn case].

However, as might be expected, Eatinger, in a declaration filed with the court in October 2009, denies that Brown ever informed him of his cover-status change. The proof: Eatinger never “memorialized” the conversation with “a note to the file.”

So, the reasoning seems to be that because he didn’t put an official note in a file, it never happened.

“I am also confident that had Mr. Brown informed me of the change in his cover status in the summer of 2002, I would have memorialized this conversation with a note to the file,” Eatinger states in his declaration. “While I served as Chief of the Litigation Division, it was my practice that, whenever I learned significant information relative to a case in which the Litigation Division was involved or whenever I took some action in a case, I would memorialize the information in a handwritten note or in an internal e-mail that I would send to a paralegal to place in the relevant case file.

"Given that I did not take the actions described … I am very confident in my belief that I never learned that Mr. Brown’s cover had been lifted and rolled back until January 2008 [after the court was made aware of that fact by DOJ attorneys].”

But there’s more. As in the current Feinstein/CIA dust-up, accusations of spying and document manipulation also are at the core of Horn’s case.

In addition to chastising the government for the conspiracy by former CIA Station Chief Arthur Brown and former State Department Chief of Mission Franklin Huddle Jr. that prompted the litigation [in which they were accused of planting spying equipment in Horn’s home in Burma, among other acts), and for the alleged cover-up of Brown’s rolled-back covert status by CIA lawyers that nearly derailed Horn’s lawsuit, Judge Lamberth, in a March 30, 2009, ruling, also references “disturbing evidence in a sealed motion indicating that misconduct occurred in the Inspector General’s offices at both the State Department and Central Intelligence Agency.”

A court pleading filed in the Horn litigation indicates that a former supervisory agent with the State Department OIG had agreed to testify under oath that an investigative report he prepared in the Horn matter “was rewritten without his knowledge or permission, and his signature forged, and his intended conclusions changed.”

In addition, the former State Department OIG agent, Paul E. Forster, according to the court filing, planned to testify that his “counterpart” at the CIA’s OIG (an individual named Michael E. Grivsky) also was subjected to similar treatment.

A threat by the judge to impose sanctions on Eatinger and others involved in the Horn-case deceptions was lifted after the State Department and CIA OIGs agreed, presumably at the urging of DOJ attorneys, to refer the matter to Congress for investigation.

A motion filed on July 20, 2010, in federal court in Washington, D.C., confirms that the Congressional referral requested by Judge Lamberth (as a conditon of dismissing his order calling for sanctions) was, in fact, made:

Pursuant to the Court’s March 30, 2010 Memorandum Opinion and Order … the Offices of the Inspector General in the Central Intelligence Agency and Department of State referred the allegations set forth in the Court’s Opinion and Order to the Integrity Committee of the Council of the Inspectors General on Integrity and Efficiency and informed their respective congressional oversight committees of the allegations. The government respectfully requests that the Court now grant the government’s motion to vacate the Court’s January 15, 2009 and February 6, 2009 opinions and orders [which threatened sanctions against CIA lawyers, including Eatinger].

Narco News published a story on July 4, 2010, indicating that The House Committee on Foreign Affairs had launched an investigation into alleged corruption within the State Department and its Office of Inspector General that was exposed in a lawsuit filed by former DEA agent Richard Horn.

In addition, according to a well-placed Congressional source, the House and Senate Intelligence committees (the latter now chaired by Feinstein) as well as the Senate Committee on Foreign Affairs all were put on notice about the alleged corruption, which, in Horn’s case, also involved CIA attorneys as well as CIA’s Office of Inspector General (OIG).

Of course, Congress, and its various intelligence-agency oversight committees, proceeded promptly to do nothing and the referrals ultimately disappeared into the dustbin of inaction. After a 15-year battle with the CIA, Horn walked away from his case with a $3 million settlement and Judge Lamberth ultimately dismissed all threatened sanctions against CIA attorneys.

“The extraordinary circumstances of ending this 15-year-old, hotly contested litigation that has already consumed too much time and too many resources for everyone concerned and the desirability of finality are sufficient for this Court to enter an accompany order … dismissing this action…,” Judge Lambert wrote in a March 30, 2010, ruling in the Horn case. “However, it is not without some misgiving that the Court reaches this decision. Another member of this court last year approved the settlement of another case (involving the FBI’s investigation of the anthrax mailings in late 2001) which involved payment to an individual plaintiff of $6,000,000 by the United States. …It does not appear any government official was ever held accountable for this huge loss to the taxpayer.

“Now this Court is called upon to approve a $3,000,000 payment to an individual plaintiff [Horn] by the United States, and again it does not appear that any government officials have been held accountable for this loss to the taxpayer. This is troubling to the Court.”

Fools on the Hill

And so CIA attorney Eatinger and others allegedly linked to the Horn case corruption survived and now, more than four years later, we find a US Senator, SSCI Chair Feinstein, accusing the same CIA lawyer of "a potential effort to intimidate" Senate committee aides and of "providing inaccurate information" to the Department of justice.

But no need to worry too much, given Eatinger will soon be replaced in his acting deputy council role by a permanent replacement, Caroline Krass, whose nomination to the CIA’s top lawyer post had been held up until this past Thursday, when it was suddenly cleared.

So now Eatinger is removed from the lead role on the public stage and the tension between the Senate and CIA can be managed away behind closed doors for the benefit of a gullible nation. 

If history is any guide, expect the Senate/CIA flap to now quickly smooth over; the report on the Bush-era detention and torture practices at the center of the controversy to be buried, or released publicly in a whitewashed form; and all those accused of subverting our Constitutional process to be awarded accommodations and/or provided golden parachutes and lucrative private-sector employment.

Maybe there will be a more just outcome, one that bears a resemblance to justice and truth, but one source close to the Horn case told Narco News that if you believe the past is prelude to the future, then it’s best not to put any money on that bet:

Obviously, Mr. Eatinger did not learn his lesson. Who ever thought he would? Certainly not me. There was never any accountability in the Horn case — ever. So it is.

Stay tuned....

For access to all past stories by Narco News on the Richard Horn case, go to this link — and also look for the story links at the bottom of the article.

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