CIA's "Great Pretense" Exposed in State-Secrets Fraud Case

Judge Can Make History Right by Keeping Pleadings in Ex-DEA agent Richard Horn’s Lawsuit on the Books

 

Former DEA agent Richard Horn, with the help of his attorney, former federal prosecutor Brian Leighton, recently brought the mighty CIA to its knees.

For some 15 years, Horn waged a legal battle in federal court against a former CIA official whom Horn alleged had illegally eavesdropped on him as part of a CIA- and State Department-backed effort to thwart DEA’s anti-narcotics mission in Burma in the early 1990s.

The CIA’s efforts to undermine Horn’s work in Burma in getting that nation’s government to stem the flow of heroin to the United States should come as no surprise to those who are familiar with the “Agency’s” history. It seems the CIA, over the decades, has often found itself in the corner of narco-traffickers and thugs who support the Agency’s covert objectives in areas deemed critical to U.S. special interests – whether that be in Southeast Asia, Central Asia or Latin America.

That’s the big pretense of the drug war practiced as dark art by the CIA.

However, earlier this month, government attorneys representing the interests of the CIA agreed to cut a deal with Horn — which calls for the government to shell out some $3 million to Horn to cement a settlement. In exchange, the CIA hopes to put pressure on the judge in the case to erase from the court record several opinions he rendered that accuse CIA officials of committing a fraud on his court and which also opened the door for sanctions to be sought against the culpable current and former CIA employees.

So, it seems that the CIA has made a calculation in the Horn case that its big pretense cannot long endure if the big truth is allowed to remain in the court record — which is the basis of the rule of law the CIA too often seeks to skirt.

For proof of that statement, we need only look at the CIA-pedigreed officials who are in the scope of the federal judge’s opinions in the Horn case. Among them are former CIA Director George Tenet and recently retired Acting CIA General Counsel John Rizzo.

Both Tenet and Rizzo played key roles as part of the Bush Administration in attempting (with the help of Justice Department attorneys like John Yoo, Jay Bybee and Steven Bradbury) to set up a legal framework, marked by deceptive legal reasoning, to justify the CIA’s use of torture (i.e., waterboarding). Both also were part of the Agency’s leadership during the era of “intelligence lapses” that helped pave the way for 9/11 and the ill-fated Iraq War.

And now, as part of the Horn case filed in a Washington D.C. federal court, we find a U.S. District judge, former FISA court member Royce Lamberth, opening the door for sanctions to be brought (as a result of the fraud, or lie, perpetrated on the court) against Tenet and Rizzo — as well as several other current and former CIA officials, among whom is Robert Eatinger, the current Acting Deputy General Counsel for Operations in the CIA’s Office of General Counsel (OGC).

If Lamberth’s judicial opinions in the Horn case are allowed to remain in the court record — to be recalled and cited going forward by other lawyers, judges and academics — then untold damage could be done to the reputation of the CIA and its leadership. Those judicial opinions memorializing the CIA’s fraud on the court also would serve as a permanent reminder of the occasionally dubious credibility of the Agency’s pronouncements invoking national security and the state-secrets privilege.

Judge Lamberth has yet to rule on the proposed Horn settlement, and independently on whether he will vacate his prior opinions in the case — and thereby erase from the court record any hint of the CIA’s alleged duplicity.

So, in order to preserve for the public memory, in the event the court record is subtracted from this nation’s legal memory, Narco News now offers you a glimpse behind the curtain of the big pretense as reflected in the pleadings of a cast of CIA players in the Horn case.

Where It Began

Horn’s civil lawsuit was filed in 1994 against former CIA Chief of Station in Burma Arthur Brown and former State Department Chief of Mission in Burma Franklin Huddle Jr. — who were both stationed in the country, now known as Myanmar, in the early 1990s at the same time Horn served as DEA’s country attaché.

In the litigation, both Brown and Huddle are accused of violating Horn’s constitutional rights by conspiring to plant an eavesdropping bug in his government-leased quarters in Burma. Horn also alleges in the lawsuit that the eavesdropping was part of a larger effort by Brown and Huddle to undermine DEA’s anti-narcotics mission in Burma.

The judge in Horn’s civil case, which is still pending in federal court in Washington, D.C., earlier this year ruled that the CIA had committed a fraud on his court by failing to reveal in a timely manner that Brown is 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, with Huddle as a defendant, 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.

As a consequence, Judge Lamberth determined, in a series of subsequent opinions, that Brown should be reinstated as a defendant; that the deceit related to Brown’s cover status constituted a fraud on the court; and that Horn’s attorney, Leighton, should be allowed to file a motion seeking sanctions against the current and former CIA officials allegedly responsible for the fraud.

U.S. government attorneys now seek to strike from the court record those rulings by the judge as part of the pending settlement of the Horn case.

From Leighton’s sanctions motion, filed this past June, in the wake of Judge Lamberth's earlier opinion indicating he would consider such a motion:

CIA OGC [Office of General Council] 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 Brown’s covert status. Former Director Tenet must likewise be sanctioned because it was his declaration that caused this Court to dismiss Brown from the case, and … since it was former Director Tenet who was still the Director [in 2002] at the time Brown’s covert status was substantially changed to non-covert, his obligations to the Court and the Plaintiff [Horn] were magnified. Likewise, Defendant Brown, an Agency official [who retired from the CIA in February 2005] and a Defendant in the case, likewise was required to inform this Court … of the change in his [cover] status. …

In the wake of the court being made aware in early 2008 of the CIA’s failure to reveal the change in Brown’s cover status, several current and former CIA officials filed declarations and/or motions with the court attempting to explain why they should not be held liable for that alleged fraud.

An examination of those court pleadings exposes what appears to be a culture within the CIA that rewards adherence to pretense and successful efforts at passing the buck as opposed to encouraging a commitment to the truth and rule of law.

In the case of then-Acting CIA General Counsel Rizzo’s declaration to the court — prepared by another CIA attorney, yet signed by Rizzo, in March 2008, after an internal CIA investigation into the Brown affair — the blame for CIA’s failure to inform the court in 2002 of Brown’s cover-status change is placed at the feet of the Agency’s National Clandestine Service (which oversees the spook side of the CIA’s operations). Rizzo claims that the NCS failed to coordinate with the CIA’s lawyers when lifting Brown’s cover status and, as a result, those lawyers were not aware of the change and could not communicate it to the court.

From Rizzo’s March 26, 2008, declaration:

In order to avoid this mistake in the future, I have asked the NCS [National Clandestine Service] to take the following corrective action. In all circumstances where an employee’s cover status is relevant to pending legal proceedings, OGC [the CIA’s Office of General Counsel] and the NCS shall coordinate before any cover changes are made. The NCS has agreed to take this corrective action.

So, it appears the NCS, based on Rizzo’s word, is not very good about keeping CIA lawyers, who are charged with asserting state-secrets claims in the courts, up to speed about whether any particular CIA agent is currently covert, or not. If that is true, then how can the word of the CIA ever be trusted in the courts with respect to a claim of state-secrets privilege — unless we believe that Rizzo’s “corrective action” has, absent any verification by an outside party, made the problem go away?

In a motion filed last month in the Horn case, an attorney for Rizzo also argued that the then-Acting General Counsel of the CIA (and chief architect of the legal cover for the Agency’s Bush-era torture policy) would have been too busy in 2002 dealing with 9/11-related matters (such as soliciting Justice Department memos based on flawed legal logic to support CIA torture operations] to concern himself with a mere matter of assuring that the courts were made aware of the truth concerning the lifting of Brown’s cover status.

From the October Rizzo motion:

Mr. Rizzo was extensively involved in the intense activity following the 9/11 terrorist attacks. As Acting General Counsel, it was his responsibility to serve as a legal advisor to Mr. Tenet regarding the Agency’s actions post-9/11. It is unlikely, given this activity, that he would have been personally involved in one particular Bivens action [the Horn legal case] against a CIA employee [Brown] at this time.

In the end, Rizzo, in his March 26, 2008, declaration with the court, puts the blame for the failure of the CIA to inform Judge Lamberth of Brown’s cover-status change at the feet of an unnamed, green CIA attorney. (In fact, Rizzo, for some reason, fails in his declaration to identify by name any CIA officials potentially at fault for failing to inform the court of Brown’s cover-status change.)

And even in the case of the unnamed CIA attorney, Rizzo concedes that the individual (since identified in the court record as Jeffrey Yeates) only became aware of Brown’s cover change in 2005 while working on the Horn case. Yeates failed to inform the court at that time, resulting in a U.S. Court of Appeals ruling in the Horn case that was premised on false information about Brown's cover status.

Yeates, in a declaration he filed with the court last month, contends that he does not recall being made aware of Brown’s cover-status change. However, he concedes that a note discovered last year in his files during the CIA’s internal investigation into the Brown affair does seem to indicate he must have had some knowledge of Brown’s cover being lifted.

From Yeates declaration:

If I did know about the changes in Mr. Brown’s status, and did not advise others, my conduct was neither willful nor intentional. At no time did I intentionally withhold the status of Mr. Brown’s cover … from my supervisors, the Department of Justice, the Court or the parties.

Apparently, Rizzo considered Yeates’ explanation as an adequate contrition, given that Yeates was administered what amounts to a professional slap on the wrist as retribution for his faulty memory.

More from Yeates declaration:

In July 2008, after the internal review of the OGC’s actions in the Horn matter, and while the matter was pending before this Court, I met with John Rizzo, Acting General Counsel of the CIA, and Managing General Counsel James Archibald. During that meeting, they informed me that my actions in the Horn matter warranted formal disciplinary action. They advised me that the CIA was issuing a letter of reprimand. They told me that as part of the employment discipline, I would be ineligible for any promotions or awards for one year. Additionally, I was suspended from work for one week without pay.

After serving that penance, in October of this year, Yeates was promoted to a counter-terrorism post within the National Clandestine Service, according to court pleadings.

So Noted

There is one problem with the lone-gunman theory advanced by Rizzo in this case. Brown filed a declaration with the court in January of this year alleging, in stark contrast to Rizzo’s declaration, that in 2002 he had personally informed two CIA attorneys that his covert-cover had been lifted.

From Brown’s declaration:

Citing the Rizzo Declaration … [Judge Lamberth’s] Opinion states that “the Office of General Counsel within the CIA — which was involved in this litigation — was not informed of the change in Brown’s cover status until 2005.” … That is incorrect. I recall notifying, in person, two attorneys in the Office of General Counsel (OGC) Litigation Division, A. John Radsan [now a law professor at the William Mitchell College of Law in St. Paul, Minn.] and Robert J. Eatinger [the current OGC Acting Deputy General for Operations] about the change in my cover status in 2002, within a few months of the agency’s actions.

From the inception of this litigation, OGC 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].

Radsan, in a declaration filed in the Horn case in March 2008, states simply that he does not “recall being informed prior to March 2008 [after the court was made aware] of any change in his [Brown’s] cover status.”

Eatinger, in a declaration filed with the court in October 2009, also denies that Brown ever informed him of his cover-status change.

“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].

That’s particularly convenient reasoning, given the fact that such a note was allegedly found, signed by Yeates, in the CIA legal files for the Horn case.

Again, from Yeates October 2009 declaration:

… [In March 2008] I was asked to review the OGC Horn case file for the period that I was assigned to the case for any further information relating to the lifting of Mr. Brown’s cover. During the review, I located my copy of the draft Motion for Summary Affirmance. On the draft Motion I appear to have made a notation in or about January 2005 that stated, “Brown’s cover lifted --- issue?” Although I have no recollection of being told of the change in Mr. Brown’s status, from this note, it appears that in January 2005 I had been so informed….

In a footnote in court pleadings filed in October by Rizzo’s attorney, the conflict between Brown and Rizzo’s declaration is explained away as follows:

Mr. Brown’s declaration recollection merely conflicts with Mr. Rizzo’s declaration. Conflicting depositions alone are not clear and convincing evidence that Mr. Rizzo acted in bad faith to deceive the Court.

Slam Dunk

But it is former CIA Director Tenet’s explanation for his failure to inform the court of Browns’ cover-status change that offers us yet another vista on the nature of CIA truth-telling.

Remember, in a declaration he filed with the court in 2000, it is Tenet who invoked the state-secrets cloak in the Horn case based, in large part, on Brown’s then-covert status. Had Tenet — who served as head of the CIA until June 2004 — assured that the court was made aware in 2002 that Brown was no longer covert, then the fraud committed against the court would have been averted.

Tenet, in court pleadings filed in August, also has a seemingly convenient excuse for his failure to assure that his duty to the court was carried out.

… Until the time in May 2009 when I learned the Plaintiff [Horn] intended to file a motion for sanctions against me, I do not recall ever being informed, learning of, or otherwise having any knowledge that defendant Brown’s cover had been lifted and/or rolled back in 2002.

Moreover, in my capacity as DCI, I was not typically involved in routine personnel matters, such as the lifting or rolling back of a CIA employee’s covert status, nor was I typically advised of such matters. I would not have expected, in the ordinary course of performing my responsibilities as DCI, to have been informed of or to have learned of the routine lifting or rolling back of an employee’s cover.

But there is one small matter not mentioned by Tenet in that explanation asserting his benign ignorance: The whole reason why Brown’s cover was lifted in the first place.

According to Rizzo’s March 26, 2008, declaration:

The file indicates that on 3 April 2002, Mr. Brown requested that the CIA “lift” and “roll back” his cover because he had been appointed as the National Intelligence Officer (NIO) for East Asia. … The NIO for East Asia is a member of the National Intelligence Council (NIC). The NIC is composed of senior analysts within the intelligence community and substantive experts from the public and private sectors who are appointed by, report to, and serve at the pleasure of, the Director of National Intelligence. ... [Footnote:] In 2002, the NIC worked for the DNI’s predecessor, the DCI [the Director of the Central Intelligence Agency].

In other words, Tenet asks us to believe that he had no clue Brown’s cover status was lifted in 2002 when the primary reason for that action to begin with was to make it possible for Brown to serve on the NIC — whose members are “appointed by, report to, and serve at the pleasure of” the DCI — who, in 2002, at the time of Brown’s appointment to the NIC, was Tenet.

Now, assuming Tenet is telling the whole truth, and nothing but the truth, then he apparently was clueless about the people serving on the NIC, which might explain, in part, why he thought the pre-Iraq War intelligence indicating Saddam Hussein had weapons of mass destruction was, in his words, a “slam-dunk.”

From a September 2009 Congressional Research Service report on the NIC:

The National Intelligence Council (NIC), composed of some 15 senior analysts and national security policy experts, provides the U.S. Intelligence Community’s best judgments on crucial international issues. … Congress occasionally requests that the NIC prepare specific estimates and other analytical products that may be used during consideration of legislation.

The NIE process was a source of widespread concern in the aftermath of the NIE on Iraqi weapons of mass destruction (WMD) prepared in September 2002 at the request of Members of Congress. The estimate that Baghdad was hiding large numbers of WMDs was not borne out by a field investigation undertaken after the collapse of Saddam Hussein’s regime and called into question the basic competence of the Intelligence Community in general.

So, it would seem the Horn case raises some major questions about the integrity and/or competence of the CIA’s leadership. That might explain the CIA’s current efforts (being exercised through the Department of Justice) to encourage Judge Lamberth, with the stroke of his pen, to expunge the record of Horn's litigation from the court’s history —in exchange for a measure of Agency contrition expressed via a payment of gold to Horn.

But gold alone cannot wipe away the blood of history, which might as well be coursing through the pen Judge Lamberth uses to affirm, or deny, the Great Pretense in this case.

Stay tuned …

Richard Horn Litigation Pleadings

• June 9, 2009, Motion for sanctions filed by Horn’s attorney’s

• Oct. 23, 2009, Declaration by Jeffrey Yeates

• Oct. 23, 2009, Motion filed by John Rizzo’s attorney

• March 26, 2008, Declaration by John Rizzo

• Jan. 26, 2009, Declaration by Arthur Brown

• Oct. 9, 2009, Declaration by Robert Eatinger

• March 14, 2008, Declaration by John Radsan

• Government's motion asking Judge Lamberth to vacate his Jan. 15 and Feb. 6 (2009) opinions

• Goverment's motion asking Judge Lamberth to vacte his July 16 and Aug. 26 (2009) opinions

• Amici Curiae Brief filed by Al-Haramain Islamic Foundation Inc., Wendell Belew and Asim Ghafoor opposing government's motion to vacate Judge Lamberth's opinions

• Judge Lamberth's Jan. 15, 2009, opinion

• Judge Lamberth's Feb. 6. 2009, opinion

• Judge Lamberth's July 16, 2009, opinion

• Judge Lamberth's Aug. 26, 2009, opinion

Prior stories on Horn’s case

U.S. agrees to settle lawsuit in which CIA officials are accused of misconduct, fraud

• U.S. government's effort to derail former DEA agent's lawsuit marked by deceit

CIA, State Department accused of sanitizing report into alleged misconduct

Former DEA agent's lawsuit exposes CIA "fraud"

State secrets claim takes a blow in Horn case

DEA Agent’s Whistleblower Case Exposes the “War on Drugs” as a “War of Pretense”

 

 

 

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