The CIA and the $3 million coffee table

Amidst other events in a week of losses, pain and gains, some good news on legal/security matters.

First, a remarkable case involving secret electronic surveillance and fraud against the court has been settled in DC.

When the CIA replaces your coffee table without your consent or knowledge, and you are a loyal employee of the U.S. government, sometimes the Agency has to pay. Plaintiff Richard A. Horn, a former Drug Enforcement Agency officer, sued the CIA and others for secretly bugging his home when he was stationed in Rangoon, Burma, in the 1990s. On March 30, plaintiff and CIA finally settled the lawsuit, Horn v. Huddle, for $3 million.

Richard A. Horn

Chief Judge Royce Lamberth of D.C. District Court issued the final order. The case has dragged since its 1994 filing by plaintiff Horn, alleging that CIA and State Department personnel illegally wiretapped him.

One colorful detail from Horn’s lawsuit was the following:

“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.”

The lawsuit was delayed under two administrations, terminated and revived, placed under seal but unsealed after convincing signs of fraud against the court, i.e. intentional misleading statements to the judge by government lawyers.

Rather than just deny swapping out Horn’s coffee table and other activities, CIA argued that the state secrets privilege protected it from having to come clean. Regrettably, the Agency also falsely told both the District court and the appeals court that the defendant CIA officer was covert. He was not. Both courts were jarred when this claim was retracted; as Lamberth noted in 2009,

“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.”

Thus “defendant Brown and at least one attorney committed fraud on this Court and the Court of Appeals,” and the CIA officer was reinstated as a defendant.

Fraud against the court, or fraud on the court, is defined in Black’s Law Dictionary as “A lawyer’s or party’s misconduct in a judicial proceeding so serious that it undermines or is intended to undermine the integrity of the proceeding.” Examples include bribing a juror and introducing fabricated evidence.

Like other crime, fraud on the court does not pay. In January 2009 the judge referred the CIA attorney to the Court’s Committee on Grievances. Contempt motions were filed by plaintiff against others including former CIA Director George Tenet. Plaintiff also filed motions for attorneys’ fees. CIA threw in the table, and on the Pottery Barn principle—You replace it, you buy it—the two parties have settled, pursuant to court directions regarding any future filings, for $3 million to the plaintiff for damages, fees and other litigation costs.

In the process, the state secrets privilege also went over the side:

“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.”

The judge rejected assertions of state secrets privilege in this CIA-related matter and also granted permission to file an amicus brief is to attorneys in a wiretapping lawsuit on the West Coast. The amici curiae brief by Al Haramain Foundation should be informative. The Al Haramain case is the last case still alive with evidence provided by AT&T whistleblower Mark Klein that the telephone company participated with the NSA in extensive wiretapping.

(In an otherwise unrelated development, Norman Leboon, the off-balance Philadelphia man who made death threats against Rep. Eric Cantor, R-Va., and his family, also attempted to sue his phone company over alleged wiretapping.)

More transparency would be a break in the case, from a public policy perspective.

As reported in law.com, in dismissing the case, the judge “ordered the Justice Department to notify him whether it will refer allegations of government misconduct to the Office of the Inspector General and to appropriate oversight committees in Congress . . .”

The judge said there is “disturbing” evidence in a sealed motion that “demonstrates the benefit” of notifying the oversight committees of Congress.”

Disturbing, indeed: Lamberth says that the sealed motion suggests that “misconduct occurred in the Inspector General’s Office both in the State Department and in the Central Intelligence Agency.” It would be illuminating to have the sealed evidence disclosed by the current Justice Department.

The watchword to go with transparency is accountability. In approving the settlement between the parties, the judge added that “it is not without some misgiving that the Court reaches this decision.” Despite the undeniable benefit of having a contentious 15-year case settled and out of the courts, Lamberth notes that another $6 million was awarded to an individual in the anthrax investigation. That would be Steven Hatfill, whose life was made miserable by berserk accusations about the anthrax mailings, and who was later exonerated. A defendant in the Hatfill case was Bush’s third Attorney General, Michael Mukasey.

As Lamberth writes, “It does not appear that any government official was ever held accountable for this huge loss to the taxpayer.” “Now,” the judge writes, “this Court is called upon to approve a $3 million payment to an individual plaintiff 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.”