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

Recent DOJ pleadings in state-secrets case appear to rely on fabrications


U.S. government attorneys seem to have made another major blunder in the closely watched state-secrets privilege case involving former DEA agent Richard Horn.

Government lawyers who are seeking to advance national security claims in Horn’s case have already been accused of committing a fraud on the court. In addition, Paul E. Forster, a former agent with the State Department Inspector General’s Office (OIG) is now prepared to testify in the case that his superiors whitewashed an investigative report that substantiated Horn’s charges against CIA and State Department employees.

Now, in a motion filed September 9 with the U.S. Circuit Court of Appeals for the District of Colombia, Department of Justice attorneys seem to advance claims in the Horn case that are at odds with the facts. And, interestingly, about three weeks after that seemingly flawed appeals-court motion was filed, the parties to the lawsuit (including the DOJ) reached an “agreement in principle to settle the underly ing litigation,” according to pleadings filed with the court.

That settlement, the pleading state, was supposed to be ironed out by the end of October. However, as of the time of this report, Narco News was unable to confirm whether an agreement has been finalized.

The September 9 motion filed by attorneys from the DOJ’s Civil Division was an effort to convince the appeals court to issue an emergency “stay,” or hold, on the Horn case proceedings pending a review “of the district [lower] court’s order compelling the government to grant [or renew] security clearances to [private] counsel [for Horn and the defendants in the case — a former CIA station chief and a former State Department chief of mission]. …”

Absent the granting or renewing of those security clearances to the attorneys, Horn’s case is essentially, once again, dead in the water. That’s because the process adopted by the judge for separating what can be presented as evidence in the case from what cannot (due to its classified nature) requires that the attorneys be granted security clearances.

In order to advance the argument before the appeals court judges for the stay in the court proceedings, the DOJ attorneys in their motion arguably attempt to paint the judge in Horn’s case (Royce Lamberth) as an incompetent jurist who fails to understand the complexities of national security and Horn as a loose cannon who is harming the country by recklessly releasing national security secrets.

The problem with that effort, however, is that the claims advanced in the government’s September 9 motion to support that dire narrative appear to be fabrications — when those claims are compared with the facts in the court record.

H. Thomas Byron III, who is one of the DOJ attorneys whose name appears on the September 9 pleadings, however, says: “I stand by [the] motion and believe it’s accurate.”

Byron declined to comment beyond that statement.

Twisting the Truth

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 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. Judge Lamberth determined that those responsible for the fraud allegedly include several attorneys with the CIA’s Office of General Counsel, and Brown himself.

The judge, clearly upset with a pattern of CIA dishonesty, in July of this year ordered the court pleadings in Horn’s case to be unsealed and made available for public viewing. (The case, until that point, had been cloaked under a “state-secrets privilege” ruling due to alleged “national security” concerns and all of the pleadings filed under seal.)

DOJ attorneys filed the September 9 motion for a stay with the appeals court after Judge Lamberth ruled on September 4 against a similar motion filed in his court by the government. The government’s September 9 motion references Lamberth’s September 4 motion frequently and, seemingly, without great reliance on the truth.

Following are some of the alleged misrepresentations in the DOJ’s September 9 appeals court filing — which is titled “Reply in Support of Emergency Motion of the United States for Stay Pending Appeal.”

The government’s September 9 motion can be found at this link.

Judge Lamberth’s September 4 motion can be found at this link.

• From the government’s September 9 motion before the appeals court:

The district court also refers to Horn's prior unauthorized disclosures to his counsel.

[The motion goes on to quote partially from Judge Lamberth’s Sept. 4 ruling.]

(... "counsel for Horn *** discussed most, if not all, of the classified information Horn knew related to this case.") [Emphasis added.]

... Horn's prior and repeated breaches of security by disclosing classified information to his counsel (and more broadly to the public) do not justify the district court’s disregard of the Executive’s [President’s] well-established procedures for safeguarding that information against further breaches.

From the judge's September 4 ruling (or Memorandum Opinion):

First, for large portions of this litigation counsel for Horn had a security clearance and discussed most, if not all, of the classified information Horn knew related to this case. As to the renewal of Horn's counsel's security clearance, the government cannot demonstrate an injury, since it has once before allowed disclosure of the information it now seeks to "protect."

[Notice that in the government’s September 9 motion, ellipses are inserted in place of the phrase “had a security clearance,” which has the effect of obscuring the meaning of Judge Lamberth’s statement in his September 4 ruling and making it appear that the judge is saying Horn engaged in "unauthorized disclosures."]

• From the government’s September 9 motion before the appeals court:

But that concern results from the district court’s failure to rule on the [state-secrets] privilege…. [Emphasis added.]

[In fact, Judge Lamberth did rule on the state-secrets privilege question.]

From a July 16 Memorandum Opinion [link here] issued by Judge Lamberth:

Upon consideration of the motions, the declarations, the plaintiff’s opposition, the government’s reply, applicable law and the entire record herein, the assertion of the state secrets privilege and proposed protective order will be DENIED without prejudice. [Emphasis added.]

• From the government’s September 9 motion before the appeals court:

The district court [Judge Lamberth] here improperly and unnecessarily seeks to involve private counsel [Horn and the defendants’ attorneys] in assessing the scope of the state secrets privilege. [Emphasis added.]

[In fact, Judge Lamberth seeks to set up very elaborate procedures, involving in-camera and ex-parte filings by government attorneys, for assessing what is or is not national-security sensitive material as part of Horn’s case. Those procedures do not involve granting the power to make that assessment to “private counsel.”]

From a Memorandum Opinion issued by Judge Lamberth on Aug. 26, 2009 [link here]:

It is important to remember that at this juncture, the plaintiff, defendants, and their counsel, only have a need-to-know the classified and/or privileged information already known to them or to their clients for purposes of allowing this lawsuit to proceed. …

Within 40 days of this date, the plaintiff and defendants will be required to file motions with the Court stating (1) information that they intend to use during discovery and/or present at trial, and (2) over which the parties believe the government has improperly classified, asserted the privilege over, or redacted, including specific justifications for their arguments.

… After the Court receives these filings, the government will have an opportunity to respond, and it will be able to respond ex parte [alone with the judge, absent the presence of other parties] if it believes its very responses are privileged and can justify its belief.

• From the government’s September 9 motion before the appeals court:

Horn also makes wild and unsupported assertions of bad faith. [Emphasis added.]

[In fact, it is Judge Lamberth — not Horn — who accused the CIA of acting in bad faith and committing a fraud on the court.]

From a January 14, 2009, Memorandum Opinion issued by Judge Lamberth:

Defendant Brown’s cover was lifted and rolled back in 2002. However, this Court was not informed of the change in Brown’s status until 2008.

Moreover, the attorney “handling” the case within the CIA’s office of general counsel in 2005 was put on actual notice of the change in Brown’s [CIA cover] status in January 2005. Nevertheless, he or she reviewed drafts of appellate pleadings arguing that Brown’s identity was covert and failed to correct the false statement or report it to his or her superiors. The Court of Appeals ruled in favor of Brown, relying on the fact that “nothing about ‘Defendant II’ would be admissible at trial.”

… Because the misrepresentation was material, intentional, involved an officer of the court and was directed at the judicial machinery itself, this Court concludes that the government’s actions constitute a fraud on the court. [Emphasis added.]

The three-judge appeals court panel, after reviewing the DOJ’s September 9 motion, agreed to grant a stay pending appeal, which effectively put a halt to Horn’s litigation, including his attorney’s attempts to depose former State Department agent Forster — since Forster’s planned testimony concerning the whitewashing of the State Department OIG investigative report would likely broach matters requiring the attorneys involved to have security clearances.

However, absent a last-minute change of heart by one or more of the parties to the litigation, a settlement in the Horn case appears imminent, possibly to be announced as soon as this coming week.

And given the U.S. government’ past record of deceit in the Horn litigation (under the guise of protecting state secrets), it doesn't seem far-fetched to consider that the next move to be made by DOJ attorneys overseeing the case might not be motivated purely out of a desire to protect national security or to advance the cause of justice.

Stay tuned ....


Prior stories on Horn’s case

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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