Judge Slams Government Attorneys for "Wrongdoing" in CIA-Enabled State-Secrets Case

Posted by Bill Conroy

CIA lawyers, however, take it personally, object to judge’s plausibly deniable assignment of guilt

The federal judge presiding over the nearly 16-year-long legal battle waged by former DEA agent Richard Horn has finally weighed in on a proposed settlement agreement in the case.

In a ruling issued on March 30, the federal judge agreed to dismiss the case and all pending motions save two. The ruling triggers the government’s requirement to pay Horn a total of $3 million per the terms of the settlement agreement.

The two motions not dismissed, but rather held in “abeyance,” dealt with the government’s request to vacate “opinions and orders” issued by the judge on Jan. 15, 2009, and Feb. 6, 2009 — both of which lay the groundwork for potential sanctions against CIA officials for an alleged fraud perpetrated on the court. The judge makes the termination of those two opinions and orders contingent on the U.S. Attorney General, Eric Holder, agreeing to make a referral to the appropriate Inspector General’s Office for investigation of the allegations of government wrongdoing in Horn’s case as well as to notify the appropriate oversight committee in Congress.

“If the United States makes these notifications, then it is clear that this Court’s role should be at an end, and this Court’s opinions and orders of January 15, 2009, and February 6, 2009, and the actions of the Court’s Grievance Committee can be terminated," U.S. District Court Judge Royce Lamberth states in his March 30 ruling.

Lamberth refers to three specific cases of alleged wrongdoing in that ruling. One deals with “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,” according to ruling.

A court pleading filed in the litigation indicates that a former supervisory agent with the State Department Inspector General’s Office 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 investigative agent, Paul E. Forster, according to the court filing, planned to testify that his “counterpart” at the CIA’s Office of Inspector General (an individual named Michael E. Grivsky) also was subjected to similar treatment.

The second case of wrongdoing mentioned in the judge’s ruling goes to the very heart of Horn’s case, which was initiated based on his allegations that former CIA and State Department officials (specifically, the defendants in the case, former CIA Station Chief Arthur Brown and former State Department Chief of Mission Franklin Huddle Jr.) spied on him and sabotaged his anti-narcotics mission in Burma — now known as Myanmar.

Here’s what the judge had to say in his March 30 ruling with respect to those claims:

As to the allegations of wrongdoing that form the basis of Horn’s claims, while the government makes no admission of wrongdoing in the settlement, the Court is persuaded that the government must have at least found them credible to pay the plaintiff $3,000,000 to settle the case.

But it is the third case of alleged wrongdoing that seems to be unnerving several current and former CIA officials. Specifically, those officials, all attorneys, are taking issue with the following line in the judge’s ruling issued earlier this week:

… The allegations of wrongdoing by the government attorneys in this case are not only credible, they are admitted.

The facts that give rise to that statement by the judge is the whole reason why we know officially about Horn’s case in the first place.

Horn’s litigation was shrouded under the cloak of national security for years, until this past summer, when the judge in the case ordered the court record unsealed and challenged the government’s state-secrets claims in the wake of discovering that CIA officials seemingly had misled the court. The agency’s lawyers, according to court records, failed to notify the judge, or the U.S. appeals court involved with some of the motions in the case, that defendant 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.

There is no question that CIA attorneys failed to notify the court of the change in Brown’s status until years after his covert cover had been lifted. Even CIA officials, in affidavits filed with the court, concede the notification was not made in a timely manner, which is clearly a “wrongdoing." However, none of them take personal responsibility for the lapse.

Yet now, three of those CIA attorneys — one since retired from the Agency — have cried foul over Lamberth’s statement that “the allegations of wrongdoing by the government attorneys … are admitted.” In motions filed early this week, each of them asks the judge to retract that statement.

• From a motion filed April 1 by former Acting CIA General Counsel John Rizzo:

The Court’s statement is inconsistent with the record in this case, as Mr. Rizzo has not admitted any personal wrongdoing, and therefore should be removed from the Court’s memorandum.

[Note: Rizzo’s name is not mentioned by the judge in relation to his statement about wrongdoing by government attorneys. Rizzo’s name, along with that of two other CIA Office of General Counsel attorneys, Robert J. Eatinger and Jeffery W. Yeates, appears only once in the judge’s ruling, in reference to a June 10, 2009, motion filed by Horn’s attorney seeking sanctions for contempt of court against “various CIA personnel” — a motion that the judge agreed to dismiss in his March 30 ruling.]

• From a motion filed April 1 by Yeates, a CIA attorney assigned to the National Clandestine Services where he works on counter-terrorism issues:

Mr. Yeates has never “admitted” any wrongdoing in this matter. Quite the contrary.

• From a motion filed March 30 by Eatinger, CIA Office of General Counsel Acting Deputy General for Operations:

None of the plaintiff’s (Horn’s) allegations regarding Mr. Eatinger have been tested through adversarial proceedings, so there is no basis for any determination that those allegations are “credible.” Furthermore, the allegations of wrongdoing as they pertain to Mr. Eatinger, rather than being “admitted,” are most definitely contested.

And so, we hear this chorus of protest from Rizzo, Yeates and Eatinger even though Judge Lamberth does not mention them by name in relation to his contention that the “allegations of wrongdoing by [UNNAMED] government attorneys in this case are not only credible, they are admitted” [since the government concedes, in court pleadings, that CIA attorneys failed to provide timely notice of Brown’s covert status change, a wrongdoing that delayed justice in Horn’s case by years.]

If Rizzo, Yeates and Eatinger have nothing to fear in terms of their actions, or inactions, in the Horn case and wish to do the right thing and rid their agency of the bad actors who are responsible, then why not file a motion in support of the judge’s call for a referral of these allegations to the Inspector General and Congress? Why do these past and present CIA lawyers assume Lamberth is referring to them specifically in his ruling and seek to censor his words?

Though Lamberth may well comply with the requests of Rizzo, Yeates and Eatinger as outlined in their motions, it sure does seem the argument of “plausible deniability” is on the judge’s side with respect to his statement that generic “government attorneys” committed “wrongdoing” that is “admitted.” It sure seems the court record in Horn’s case reflects the accuracy of that statement.

It must be a strange feeling for CIA lawyers to be on the other side of the plausible deniability argument for a change, no?

Stay tuned …..