CIA Fraud In State Secrets Assertions

There is a new case causing a stir on the state secrets front today. The case is Horn v. Huddle et. al, is filed in the DC District, and has been quietly going on behind the scenes since 1994. From Del Wilber at the Washington Post:

A federal judge has ruled that government officials committed fraud while defending a lawsuit brought by a former DEA agent who accused a CIA operative of illegally bugging his home.

In rulings unsealed Monday, U.S. District Judge Royce C. Lamberth wrote that he was also considering sanctions against five current and former agency lawyers and officials, including former director George Tenet, for withholding key information about the operative’s covert status.

The rulings, issued in recent months, highlighted what the judge called fraudulent work by CIA lawyers in defending a suit that Lamberth said had a lengthy and "twisted history."

Here is the ruling issued by Judge Royce Lamberth today that set off the firestorm.

There is a lot of great background on the case, and events behind it, in an old post from Bill Conroy at Narco News in 2004:

Former DEA agent Richard Horn has been fighting the U.S. government for the past 10 years trying to prove the CIA illegally spied on him as part of an effort to thwart his mission in the Southeast Asian country of Burma.

After being removed from his post in Burma, Horn filed litigation in federal court in Washington, D.C., in 1994 accusing top officials for the CIA and State Department in Burma of violating his Fourth Amendment rights.

After languishing in the federal court system for some 10 years, Horn’s case was dismissed in late July of this year [2004] after crucial evidence in the case was suppressed on national security grounds.

What really happened in the Horn case, though, is not supposed to come out, if the government has its way. From the start, Horn’s litigation was sealed and critical evidence that could have supported his claims censored by the court.

Specifically, the evidence – two federal Inspector General (IG) reports that centered on Horn’s accusations – was determined by the court to be protected from disclosure based on something called state secrets privilege. The privilege, which was established as part of a 1953 Supreme Court ruling known as the Reynolds case, allows the government to deep-six information if it is deemed a threat to national security.

“Having determined that state secrets privilege bars disclosure of the IG Reports and certain attachments … the case cannot continue and must be dismissed,” wrote U.S. District Court Judge Royce Lamberth in his July 28, 2004, ruling in the Horn case. “As a result of the state secrets privilege, plaintiff cannot make out a … case, defendants cannot present facts necessary to their defense and the very subject matter at the heart of this case is protected from disclosure as a state secret.”

Read the rest of the background at Narco News, it is a fascinating and riveting story.

The long and short of it is the US government, and the CIA, have been fighting this case tooth and nail since it was filed as a Bivens action in 1994. The case was originally assigned to Judge Harold H. Greene (the judge who famously broke up AT&T in the anti-trust case) who in 1997 allowed most of the case to go forward in the face of a summary judgment motion by the government on the behalf of the individual defendants. In 2000, however, Judge Greene died and the case was subsequently assigned to Judge Royce Lamberth. Sometime thereafter, the attorney for Plaintiff Horn, Brian Leighton, a former AUSA in EDCA, apllied for a security clearance (As Eisenberg did in al-Haramain) so that he may proceed intelligently as plaintiff’s counsel with the case at bar in light of the sensitive nature of a sealed case.

Then, the government, after six years of litigation, filed on behalf of the CIA and the individual defendants a state secrets assertion and moved to dismiss. The court, in a July 28, 2004 opinion by Judge Lamberth, granted complete dismissal of the case:

In The alternative, even if the Court were to find that it could not resolve the Motion to Dismiss without the assistance of plaintiffs oounsel, it would still be required to balance that need against the United States’ interest in national security. Stillman, 319 F.3d at 549. But the result of such balancing was determined when the Court found the state secrets privilege applied to the information in the IG Reports and certain attachments and made the determination that the information was protected from disclosure. If the Court were to award clearances it would be encouraging the dissemination of information found to be so important that it was protected from further disclosure by the state secrets privilege.

In its August 15, 2000 Opinion the Court sustained the United States assertion of the state secrets privilege over certain portions of two IG Reports and certain attachments to those reports. The Court must now address, on motion of me United States, whether or not the case must be dismissed as a result of the removal of the information contained in the IG Reports from the case. For the reasons set forth below the Court concludes that in the absence of the material protected from disclosure by the state secrets privilege the case must be dismissed.

The July 28, 2004 Opinion by Lamberth gives a great procedural history of the case and a peek inside the contrivances of sealed cases and state secret assertions by the government. Note that one of the declarations filed by the government that led to that action by the Court was by none other than George Tenet, the head of the CIA.

Subsequent to Lamberth’s complete dismissal of the case, Horn and his attorney, Brian Leighton, filed an appeal to the Circuit Court of Appeals which affirmed the dismissal as to the CIA operative in the suit, which we now know to be Arthur Brown, and reversed and remanded the action to the District court as to the other individual in the suit, the State Department officer, Franklin Huddle.

Once the case was remanded by the Circuit Court of Appeals in late 2007 to Judge Lamberth for further proceedings as to the remaining defendant Huddle, all hell broke loose. The government suddenly admitted that the basis for their state secrets assertion in the first place, the "covert agent" status of their agent in Burma, now known to be Arthur Brown, was incorrect and that there may have been a "change in defendant two’s status". That was government speak for admitting that Brown had blown his own cover by admitting his CIA covert status in seeking different employment and had done so with CIA knowledge and, presumably, consent back in 2002.

In the spring of 2008, Plaintiff Horn filed a motion seeking relief from the judgment that had been entered against him as to defendant Brown (the part that was affirmed by the Circuit Court) and the government filed opposition thereto. In support of the government’s opposition, affidavits were filed by CIA Acting general Counsel John Rizzo, as well as a couple of other heavy hitter CIA Office of General Counsel (OGC) attorneys by the names of Robert Eatinger and John Radsan.

At this point, Judge Lamberth was having nothing to do with the perfidy of the government and CIA lying. On January 15, 2009 Lamberth entered an opinion literally excoriating the governmental defendants and entities:

Next the government argues that Brown has failed to establish fraud on the court. The government, citing cases, states that fraud on the court must be attributable to "counsel," it must be "directed to the judicial machinery itself," and there must be an "intent to deceive or defraud the court." (Gov’t Opp’n 9-10.) In contrast to the government’s claim, that burden was met in this case. The government has acknowledged that counsel within the OGC was aware of the inaccuracy and failed to bring it to the attention of his supervisors or the Court. Brown himself was clearly aware of his changed status beginning in 2002. When the OGC attorney reviewed the draft appellate pleadings knowing that they contained a false submission, and knowing that the information was critical to the government’s argument and would be helpful to the defendant’s case, the Court has no choice but to conclude that the failure to correct the falsity was intentional. And, of course, the false statement about Brown’s cover was contained in a briefIng submitted to the court itself. Therefore, the fraud in this case was attributable to counsel and directed to the judicial machinery with an intent to deceive the court.

The plaintiff’s motion also requests various other sanctions and/or contempt proceedings. Those requests will be denied. Instead, the government will be directed to provide Sheldon Snook, the Administrative Assistant to the Chief Judge, who is also the Clerk to the Committee on Grievances for the United States District Court for the District of Columbia, the name of the CIA attorney who was put on actual notice of the change in Brown’s cover status in 2005 and failed to report it. Because the fraud occurred in front of this Court, this Court’s committee on grievances will conduct an investigation and, if discipline is imposed, report the results to the Court and the licensing authorities in any state in which that attorney is licensed.

The opinion by Lamberth is damning, to say the absolute least. Read it, that is where the fraud findings that begat this story are contained. The attorney whose name Lamberth was seeking appears to be Jeffrey Yeates. Since the time of the January 15, 2009 Opinion, Judge Lamberth has been further infuriated at the actions of the government and has now invited Plaintiff Horn to renew his request for sanctions. As they say in middle America, you just don’t see that every day; it is remarkable. On February 6, 2009 Royce Lamberth entered another opinion effecting this action. This time he cleans CIA Acting General Counsel John Rizzo’s clock:

Although the Court held that one government attorney intentionally misled the Circuit in 2005 and failed to report the change in Brown’s cover upon remand, it believed, on the basis of Rizzo’s declaration, that this was an isolated incident. Therefore, the Court felt that referring the attorney involved to the grievance committee was appropriate but that the case was ready to proceed, now with Arthur Brown reinstated as a defendant.

However, on January 27,2009, the Court was surprised yet again by a filing; this filing was from Arthur Brown. Brown’ s declaration stated that the "Rizzo Declaration makes two assertions that, based on my personal knowledge are inaccurate,"

If multiple attorneys of the OGC within the CIA were aware of the change in Brown’s cover status and filled to report it to the Courts it would be a material misrepresentation to both this Court and the Court of Appeals. The CIA was well-aware that the assertion of the state secrets privilege as to Brown was a key strategy in getting the case dismissed.

The hearing transcript in Horn v. Huddle et. al dated May 19, 2009 is a good read to see just how bad all these allegations are, and just how serious the court is taking them. Here is the Hearing Transcript Part 1 and Part 2.

Oh, and by the way, Leon Panetta has soiled his name in this as well by filing a declaration on April 1, 2009 still seeking to invoke state secrets and requesting a protective order in the Horn case. Judge Lamberth has already shot this down this latest contrived bull manure in an Opinion dated July 16, 2009. Again, it is worth reading to see the tone of Judge Lamberth over what has occurred in front of him at the soiled hands of the government:

After examining the motion for a protective order and supporting declarations, the redactions made by the government, and keeping in mind the twisted history of this case, the Court is not prepared to uphold the government’s renewed assertion of the state secrets privilege without more information from the government. Moreover, with respect to information already known by the plaintiff or the defendants, the Court believes that the implementation of pre-trial CIPA like procedures is the best way to prevent unauthorized disclosure of classified information and to resolve any classification disputes between the parties and the government.

This is a huge development. Lamberth is no ordinary judge making these findings, as noted above, he is the former head of the FISC Court and his opinion is going to carry a lot of weight in courts all over the country. He is flat out suggesting a CIPA process, which has only officially been utilized in criminal cases to date, be applied in Horn, a civil case. Lamberth is dead on the money here. If Congress would get off its butt and take action on Russ Feingold and Pat Leahy about bogus state secrets claims and the need for legislation controlling the same, it would go a long way toward resolving these issues for trial courts and upholding the rule of law and plaintiffs’ access to courts for redress. But, of course, Congress is too timid and lazy and the Department of Justice and President Obama would cravenly fight tooth and nail for the right to be opaque and prevent plaintiffs their day in court.

Additionally, again Marcy’s question is germane, how exactly did John Rizzo stay at CIA performing his duties as the Acting General Counsel of the CIA as long as he did under Obama?* The man who provided the list of torture techniques to Jay Bybee for inclusion in the infamous torture memos and the man who was central to the illegal destruction of the torture tapes is still out there committing ever more frauds upon courts. Rizzo is a serial offender, and yet that seems to be just fine in the eyes of Barack Obama; apparently President Obama does not feel the American people deserve any better. Curiously, I think we do.

The other note to be taken out of the Horn case is the complete evisceration of whatever gloss of credibility the CIA has left. They lie to Congress, they lie to courts (and remember Lamberth was the Chief FISA Court judge during this time as well) and they lie to the American people.

And let us not forget the good folks at the Department of Justice who are knee deep here as well. How can any court rely on their tainted assertion and declarations on state secrets. Their pattern and practice is to lie. It really is that simple at this point. I wonder if Judge Vaughn Walker and al-Haramain attorney Jon Eisenberg are taking note of what has occurred here. I bet they are.

[This portion corrected per MadDog to reflect that Rizzo appears to have been replaced as of the first week of July]

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.

  1. Slothrop says:

    DEA agent in Burma thwarted by the CIA? All the legal stuff is interesting, but I’m guessing that drug dealing is being protected which is fascinating. Why would American intelligence want to prevent drug operations from being shut down? Or is that my imagination?

      • Garrett says:

        A 1996 Nation article about the mess names Arthur Brown as CIA station chief.

        Don’t know if the identification in article is mentioned in the case. It makes

        In the affidavit, Tenet stated that Brown was a “covert CIA employee.” Indeed, in 2000. Tenet’s statement was accurate.

        seem a bit funky. I’m pretty sure that the CIA tracks what is said about the CIA in the Nation.

        www akha.org/content/drugwar/horncasedea.html

          • NCDem says:

            Here is the article from Nation although it is hosted at a different site.

            http://www.akha.org/content/dr…..sedea.html

            I thought this connection of oil and drugs in then Burma and later Myanmar (the name comes from the giant oil company) was well worth folding away for future understanding.

            A four-year investigation conducted by intelligence analyst Casanier
            and a team of researchers found that Burma’s national company Myanmar
            Oil and Gas Enterprise (MOGE) was “the main channel for laundering the
            revenues of heroin produced and exported under the control of the
            Burmese army.” In a business deal signed with the French oil giant
            Total in 1992, and later joined by Unocal, MOGE received a payment of
            $15 million. “Despite the fact that MOGE has no assets besides the
            limited installments of its foreign partners and makes no profit, and
            that the Burmese state never had the capacity to allocate any currency
            credit to MOGE, the Singapore bank accounts of this company have seen
            the transfer of hundreds of millions of US dollars,” reports Casanier.

            • fatster says:

              Check this out.

              The Department of Justice, Corporations, Buying the Law – Part II: Strange Bargains

              BY LARISA ALEXANDROVNA AND MURIEL KANE 

Published: July 21, 2009 
Updated 3 hours ago

              “Bush US Attorney arranged lenient plea deal with company paying terrorists; Lawyer who helped secure plea deal? Obama’s future Attorney General

              “When the US Justice Department announced in March 2007 that Chiquita Brands had pleaded guilty to “one count of engaging in transactions with a specially-designated global terrorist” and would be paying a $25 million fine, observers were astonished at the lightness of the sentence.
              “Between 1997 and February of 2004, Chiquita made $1.7 million in payments to a right-wing paramilitary group, the United Self-Defense Forces of Colombia (AUC), in regions where it had banana-growing operations. During that period, AUC conducted a “dirty war” against Colombia’s left-wing FARC guerrillas, marked by widespread murders of union leaders and farmers, as well as trafficking in cocaine and heroin.”

              Link.

      • klynn says:

        bmaz,

        Years ago, at The Next Hurrah, when Rizzo’s name came up, I linked to a couple of Bill Conroy’s posts on this as well as the House of Death coverage to note a pattern of behavior by CIA.

        This is fantastic news. Thank you for your summary of the details of this great news.

        I must write that reading Justice’s Ginsburg’s quote, posted by MadDog, after reading your article makes one wonder how broad “the fix” attempt might be…and what does our country do when “the fix” may have tainted our highest court.

        But something much deeper and broader was going on in the decision, something that may unsettle how civil litigation is conducted in the United States. Justice Ruth Bader Ginsburg, who dissented from the decision, told a group of federal judges last month that the ruling was both important and dangerous. “In my view,” Justice Ginsburg said, “the court’s majority messed up the federal rules” governing civil litigation…

        (my emphasis)

        If I read that correctly, I think there is the suggestion that we need to have a review of SC decisions of late.

        The Ninth will appreciate this and be able to note it and state, “Look CIA folks, committing fraud on a case in the courts once was no accident. The pattern appears to be present in my court too.”

        bmaz, a question. Can the judges on the current cases which involve the Gov/CIA/DoJ come together after this ruling to discuss if there is a conspiracy to commit fraud on a systemic level?

    • rapt says:

      I read somewhere recently that DEA was created by CIA as a simpler means of controlling drug enforcement etc. Circumstantial evidence/stories bear this out, like for instance their failure to decrease illegal drug volume. And the funny feeling I always get when a big bust is made, that the bustees are probably unauthorised competition.

  2. NMvoiceofreason says:

    If I was Jon Eisenberg I’d be filing a motion to take judicial notice of the government’s conduct.

    Nice thing about a fraud upon the court – it has no statute of limitations.

    Book em’, dano!

  3. alabama says:

    It begins to look as if the U.S. Government were a great big war-zone, like Afghanistan, with shootouts all over the place, and where chaos reigns supreme…

    Could this be the real story–that Washington is a great anarchical void? The story that our media is assigned to suppress, giving us a false sense of security as to the running of the store?

  4. fatster says:

    Hooray for Horn and Leighton!

    Many, many Hoorays for Judge Lamberth!

    And many kudos to bmaz for sorting out this complicated case and making it intelligible and very readable.

    Oh, this is wonderful!

  5. JimWhite says:

    Thanks, bmaz. This changes the playing field dramatically in so many areas, as you point out.

    How about an Op-Ed from you or Marcy calling for Rizzo to be fired? It would look great in one of the big papers.

    [How long until Boehner tries to tell Lamberth to leave the CIA alooooone?]

  6. Slothrop says:

    Burma is run by drug dealers posing as military strongmen and it never changes because American intelligence wants it that way because the drug money funds various projects…

    Nothing ever changes in Southeast Asia.

    What was that Nick Nolte movie from the 70’s? Who’ll Stop the Rain? Based on the novel Dog Soldiers by Robert Stone. It’s all there.

  7. bobschacht says:

    Brilliant! Thanks for reporting on this take-down.
    My guess is that Obama thought they could control Rizzo by keeping him on staff. But hasn’t his replacement already been named?

    BTW, lots of typos, especially in the quotes:
    * First paragraph of July 28, 2004 quote: “oounsel…secfuity…that that”
    * The January 15, 2009 Lamberth opinion quote, second paragraph: “plaintiff’5″
    * Following the paragraph above, in your statement: “furhter”
    * The quote about cleaning Rizzo’s clock, 3rd paragraph: “filled to report it to tlle Courtb “

    These are minor bagatelles, however. Thanks for writing about this important case and its background!

    Bob in HI

    • MadDog says:

      That tends to be one of the common failings when attempting to copy and paste text from an Adobe Acrobat document.

      We’ll survive it. *g*

      • bobschacht says:

        I didn’t know if bmaz was cutting and pasting, or manually re-entering.

        But I like it that EW & bmaz care about typos. Its like whether you show up for court in a coat and tie (or equivalent professional garb for women), or in jeans and a sweat shirt. Presentation matters!

        Aloha,
        Bob in HI

  8. emptywheel says:

    Actually, I think Rizzo may be gone–he went when his replacement was confirmed by the Senate. Still, it took a while.

    Great, detailed post, bmaz. Thanks. Now I gotta catch up.

    • MadDog says:

      This Los Angeles Times article by Greg Miller back on June 29 seems to confirm that Rizzo was offically gone the first week or so of July:

      John Rizzo: The most influential career lawyer in CIA history

      …Even so, Preston was confirmed and is expected to move into Rizzo’s office on the seventh floor of the CIA headquarters building this week.

      I would note however that the CIA has a retirement out-processing where its employees are kept on the payroll but “off the job” and are “debriefed” so-to-speak for 3-6 months before finally cutting the cord.

      If I remember correctly, former Director of the National Clandestine Services, Jose Rodriguez underwent this re-introduction to the civilian world.

      This retirement out-processing may just be for the spooks rather than for the more adminstrative side of the CIA, but since Rizzo played in the sandbox for such a long time and at such a high level, perhaps he is still going through this retirement out-processing too.

      • watercarrier4diogenes says:

        Does it, perchance, include a bit of waterboarding? Say something between 83 and 183 times? Magic numbers, those.

  9. itwasntme says:

    I just finished the book “Enter the Past Tense: My secret Life as a CIA Assassin” by Roland W. Haas, which has Haas offing some Afghan and Turkish drug lords because they weren’t playing ball the American way. This was in the 70s I think.

  10. itwasntme says:

    If you can pull it up on Amazon, read page 66 of “My Secret Life as a CIA Assassin” by Roland W. Haas which is where the CIA doesn’t particularly want to shut down the narco trade.

  11. MadDog says:

    Three cheers for bmaz for a simply marvelous post!

    Considering the length of time this case has gone on, the innumerable twists and turns it has taken, and the voluminous quantity of documentation it has produced, I doff my chapeau to bmaz for his masterful work in wading through all to give us a superlative synopsis!

    Huzzah! Huzzah! Huzzah!

    My eyes are closing now so I hope he won’t mind if I return in the AM. This feast is sure to have plenty of leftovers.

    And a final thought on bmaz’s observation here:

    …Lamberth is no ordinary judge making these findings, as noted above, he is the former head of the FISC Court and his opinion is going to carry a lot of weight in courts all over the country…

    Yea, Lamberth ain’t one of those Left Coaster judges out on the 9th.

    No, Lamberth sits right smack dab in the belly of our beast, Washington DC.

    And based on some of Judge Lamberth’s reprimands in this ruling, those DC Denizens, those Beltway Bandits, those Government Goldenboys had best look fookin’ out!

    And some free advice to the Obama Administration (Craig, Holder, Rahmbo, Panetta, and yea, even Obama himself):

    The day of reckoning is at hand!

  12. emptywheel says:

    Incidentally, one note on timing.

    Horn was a DEA agent under former CIA director Poppy Bush. This case sort of moved some under Clinton. Then, under Poppy’s son, they started invoking state secrets.

    Poppy had his own very close ties to the drug running side of CIA that lasted at least until 1989 (says a friend of mine who went to a party at which the coke was supplied by “Uncle George.”

    I’m just saying.

    • phred says:

      So Poppy is a more apropros nickname than one might notice at first blush, eh?

      Great post bmaz, thanks!

      For those of us who are memory impaired (unlike our Fearless Leader), can someone remind me what other pending cases Lamberth is presiding over? I know we’ve discussed this, but I’m losing track of which case is which. I would be grateful for any reminders…

      • greenharper says:

        The background on Bushes in Russ Baker’s Family of Secrets makes clear that they’ve not been playing the same game as the rest of us. It started me wondering whether ‘Poppy’ was more an agency in-joke than a preppy nickname. Anyone know when it first was used?

        Thanks very much for this post, bmaz. I’d read elsewhere about Judge Lamberth’s ruling. For the full scoop, however, I came here.

  13. emptywheel says:

    Incidentally, Eatinger is one of the lawyers who told Jose Rodriguez he could destroy the torture tapes.

    Former CIA clandestine branch chief Jose A. Rodriguez Jr., who ordered the destruction of the tapes, has said through his attorney that he based his decision on legal advice from agency lawyers. The lawyers, Steven Hermes and Robert Eatinger, did not endorse the tapes’ destruction but rather concluded there was “no legal impediment” to disposing of them, according to sources briefed on their advice.

  14. MadDog says:

    And to bmaz, another OT thanks for clueing us all into the importance of Iqbal!

    Seems like the NYT has caught on too:

    9/11 Case Could Bring Broad Shift on Civil Suits

    The most consequential decision of the Supreme Court’s last term got only a little attention when it landed in May. And what attention it got was for the wrong reason.

    But the lower courts have certainly understood the significance of the decision, Ashcroft v. Iqbal, which makes it much easier for judges to dismiss civil lawsuits right after they are filed. They have cited it more than 500 times in just the last two months.

    “Iqbal is the most significant Supreme Court decision in a decade for day-to-day litigation in the federal courts,” said Thomas C. Goldstein, an appellate lawyer with Akin Gump Strauss Hauer & Feld in Washington.

    On its face, the Iqbal decision concerned the aftermath of the Sept. 11 attacks. The court ruled that a Muslim man swept up on immigration charges could not sue two Bush administration officials for what he said was the terrible abuse he suffered in detention.

    But something much deeper and broader was going on in the decision, something that may unsettle how civil litigation is conducted in the United States. Justice Ruth Bader Ginsburg, who dissented from the decision, told a group of federal judges last month that the ruling was both important and dangerous. “In my view,” Justice Ginsburg said, “the court’s majority messed up the federal rules” governing civil litigation…

  15. Neil says:

    … to be taken out of the Horn case is the complete evisceration of whatever gloss of credibility the CIA has left. They lie to Congress, they lie to courts (and remember Lamberth was the Chief FISA Court judge during this time as well) and they lie to the American people.

    If Bush and Cheney are to be believed, they lie to the President too, re: weapons of mass destruction in Iraq. That’s all four branches plus We the People!

  16. timbo says:

    Good catch, bmaz. At what point will the judiciary in this country say “Enough is enough!” and get on with cleaning out the vermin who have infested and undermined our Republic? And who knows, maybe the Congress too will get a backbone and finally work to sweep the rotten out of power…if it’s not too late already.

  17. Hugh says:

    Rizzo was supposed to retire sometime this summer. He may already be gone.

    A few observations:

    Federal judges by and large bend over backwards to accommodate the government in national security cases.

    Under Bush, not only did government attorneys push the envelope in these and terrorism cases but they were often incredibly sloppy. And that is where they get into trouble with the courts. Lamberth was perfectly willing to play along with the government as his initial dismissal showed. He had no problem with the government dinking around with Horn, but what Lamberth could not accept was the goverment attorneys dinking around with him. We have seen this again and again from Rasul to Hamdan to Horn. Federal courts are not real big on defendant’s rights but they get very touchy about the Executive intruding on or being disrespectful of the Third Branch. It goes to what a cockup the CIA attorneys have made of this case that they have so thoroughly pissed off an otherwise sympathetic court.

    • bmaz says:

      They really have pissed off the court. They seem to have done the same in every big case we have seen lately. It is almost a perfect record of blemishes. And remember Lamberth, along with Kollar-Kotelly, was the FISC judge who busted the government serially lying to them and breaching firewalls on their warrant applications. This case was sealed for 15 freaking years, and Lamberth just up and dumped the whole sorry record into the public domain along with a couple of giant screw you opinions. Right as Panetta is having to admit they lied to Congress and Congress is opening an investigation. It is a significant moment.

    • robspierre says:

      I wonder to what extent this sloppiness (and the anarchical quality of government behavior that Alabama alludes to above) is the product of excessive secrecy? Without secrecy, there is no accountability, no lessons learned, no consequences.

      CIA and DoJ lawyers don’t have to try very hard because they can always nuke the opposition with states secrets. So they do a poor job. No one gets to review their work because it is secret.

      Dusty Foggo could drink, gamble, and pimp his way to notoriety in foreign intelligence circles under Porter Goss, because his conduct was kept secret from Congress and the public. A paranoid like James J. Angleton could hunt his imaginary mole, hound our best agents to their deaths, and hand defectors over to our enemies because no one outside his secret world had the power and/or courage to challenge his evidence and conclusions. The Iraq “intelligence” and the ease with which amateurish interrogators were allowed to make torture the keystone of our failed attempt to counter Al Qaida further demonstrate the point.

      So we need to change the framing of the secrecy debate. It always gets framed in terms of secrecy-as-price-of-safety vs. liberty-as-luxury. But, as with torture, we can see compelling evidence to the contrary. We can see that wanton secrecy undermines our security. It fosters incompetence, hides crime, facilitates blackmail by foreign powers, and, perhaps worst of all, keeps mistakes from being recognized as such. Some secrecy may be a good thing in some cases, for a limited time. But in the long run, we need the truth that can only be revealed by the light of public revelation. Our liberties are always our best defense, as the framers of the Republic recognized. Secrecy and arbitrary exercise of power are the weapons of our enemies and can only benefit our enemies.

      • Gitcheegumee says:

        Secrecy and arbitrary exercise of power….sounds like the Catholic Church…and the Mafia’s Omerta!

  18. JohnJ says:

    So it looks like our salvation may be in the courts themselves, as opposed to DOJ or Congress….this may be entertaining while waiting out the Neocon Depression.

    We don’t need OB to do a thing (good thing, huh?)

    I hope this put you in a better mood bmaz *g*

    I tried to find you a linkable copy of Cheech and Chong’s “bailiff, whack his peepee” bit, but the only youtube copy got pulled for copyright.

  19. TarheelDem says:

    Some observations based on my experience in large organizations.

    Panetta is seen by a lot of folks in the CIA as a hostile manager, sorta like James Watt was seen at Interior during the Reagan administration.

    If Panetta is to be successful at bringing some presidential control and Congressional oversight to the CIA, he has to tread carefully during his first year. Once the the CIA career executives trust him to look out for the CIA and what they see as its mission then he can begin making whatever necessary changes Obama decides. Riding roughshod over the CIA is not a good tactic, as Jimmy Carter found out in 1980 when disaffected CIA and ex-CIA agents joined with William Casey and George H.W. Bush to effectively negotiate outside channels with Iran and to delay what might have been an earlier agreement to release the Embassy hostages. That the Church Commission report occurred during the Carter administration added to CIA distrust of Democrats. There is some complicated politics here.

    Based on what you and Marcy have reported about Rizzo in this administration, it seems clear that he is protected by someone powerful in Congress (Republican or Democrat) that Obama doesn’t want to cross quite yet. I think that it is obvious to Panetta and Obama that Rizzo is fundamentally a Bush mole trying to cover Bush’s tracks. All of these pleadings seem tenuous enough to be a “give him enough rope” tactic.

    Based on your and Marcy’s reporting, there seem to be enough cases out there for Rizzo to hang himself on one of them.

    That’s just my take based on the insider politics I’ve seen in large organizations. Exerting managerial control is not as simple as just issuing orders; I think of Truman’s remark about Eisenhower in this respect. But Eisenhower proved himself capable of playing insider politics.

    I am so waiting for one of these cases to come down hard and with finality on the government’s arguments. Then we will see exactly where Obama is on these issues. We haven’t gotten to the finality part yet.

  20. JimWhite says:

    For the timeline junkies: Does the timing of one or more of the previously sealed rulings from Lamberth line up with the sudden decision in the FISA case to correct previous information?

  21. phred says:

    OT, but related, here’s a nice piece over at McClatchy. Evidently Lamberth has company. Judge Emmet Sullivan is not happy either. My favorite quote in the article:

    Sullivan, however, was skeptical of the government’s explanation and warned that “someone’s going to pay a price” for not disclosing the information.

    “The sanction is going to be high,” he said. “I’ll tell you quite frankly if I have to start incarcerating people to get my point across I’m going to start at the top.”

    Read the whole thing, Judge Sullivan is not happy. Not. at. all.

    • klynn says:

      That is a great link. Thank you. A very good read after reading this post and the link MadDog provided @ 22.

      bmaz, there seems to be a theme/pattern…Perhaps another post on this judicial theme/pattern as it relates to the Gov lawyering patterns and judges “having enough” of such behavior?

    • emptywheel says:

      Oh good.

      Sullivan is AS WE SPEAK hearing CREW’s argument for releasing Cheney’s interview. A bad mood may really serve to put the govt’s bogus argument in perspective.

        • emptywheel says:

          I’m hoping the AP/WaPo coverage of it is better than it was last time. But it probably won’t be. I do get the feeling that Sullivan is pretty close to a decision on this.

      • Leen says:

        “a bad mood” or a real commitment to the words that so many of our leaders endlessly repeat to pacify the masses “no one is above the law, no one is above the law”

        So hope Sullivan believes those words

  22. skdadl says:

    You’re a good teacher, bmaz. I know that the teaching isn’t as lucrative as the lawyering, but it is a special skill.

  23. Mary says:

    Coupla observations

    Obama’s pick for CIA, Preston, was able to be confirmed while taking very similar positions to what Rizzo took in public hearings. He’s not that sure how bad waterboarding and torture are, he thinks that the President has to be able to keep secrets from Congress if its appropriate and to brief less than the gang of 8 etc, extraordinary rendition is the same as rendition and there ain’t nuthin illegal about it, etc. So booyah on that.

    Radsan, who has a teaching gig, has been the “go to” source for the media on a lot of the cia issues of late, treated as the “good guy” and “clean” CIA lawyer.

    What this case demonstrates is why I think Congress (Whitehouse, Leahy, etc. who were wanting to have a torture commission) needs to start with investigations of Exec branch candor to tribunals (courts and Congress). It will get them further, faster and on more solid ground imo. And probably makes some other cases unavoidable, while providing a broad enough mandate to not have to ignore all the byways that will crop up. That is the approach, as well, that will lay the proper foundation for how state secrets should really be handled.

    Lamberth, although he did rule in the ACLU case that evidence of gov crimes can be properly classified as long as the classification was not for the purpose of concealing gov crime, also made some very public statements before Congress capitulated on unConstitutional wiretappeing – basically he flat out said that he’d seen how Bush’s [illegal] program worked and he’d seen how FISA worked and FISA was much better. He is also coordinating some of the GITMO litigation IIRC, so he’s been seeing what has gone on with classification of evidence there, too. When he sees Bates and Leon making rulings that GITMO detainees are innocent and when they are passing back info in the consolidated cases (about the Yemenis for example) and when Sullivan is having to consider sanctions for GOV deliberate misrepresentations and violations of production orders, etc. – well, it might be time to be a little cranky.

    Final point – the underlying issue in the Horn case, an issue that hasn’t been dismissed, is of about as much note as the state secrets/classification nonsense. Horn’s underlying claim, which has not been substantively dismissed, is that as an American citizen, the American Gov could not engage in bugging, wiretapping etc. against him without a warrant. His underlying claim is a warrantless wiretap claim. And DOJ has made the argument which will probably get revived now that they don’t need any stinking warrant to surveil an American citizen who is located overseas. So if the 4th doesn’t apply to Americans overseas, what else can gov do to Americans overseas? Assassinate them? Anyway – here is a non-Patriot act context for the court to consider the warrantless wiretapping of Americans overseas issue.

    • bmaz says:

      I like the idea of an investigation into Exec candor to courts and tribunals. Sounds disparate though, how do you start it, how is it done and how do you get it broad enough to cover? Do you rely on judges to turn cases in? Do you have a panel go looking for them?

      • Mary says:

        Sometime I’ll try to expand on it, but I think what you do is take the “known knowns” as your start point, things were the intel and/or judiciary committees know that there has been “something less than forthrightness” in the dealings of the Exec with Congress and the courts.

        For example, you have the CIA briefings schedule (public) that shows no briefing to the full gang of 8 for years, coupled with intel activities that were only briefed to the gang of 8 or less instead of the whole committee as required, also for years; CIA misstatements re: the plane shootdowns; CIA misstatements on when torture started vis a vis OLC opinion issue dates; DOJ hiding info in Stevens; DOJ violating court orders in GITMO cases (crazy witness); DOJ classifying exculpatory information and refusing to make it available (Kurnaz); this Lamberth case re: the CIA fibbing to him; Brinkema and Hellerstein and the video destruction; etc.

        Then you go to the “known unknowns” with respect to things like Arar and el-Masri’s cases and state secrets invocations there; pictures and reports and summaries and autopsies and medical reports and other torture information and evidence not made available to courts or to defense counsel in numerous cases and likely destroyed to protect the Executive from consequences of crimes; leaks of NIE information and insta-declassification and “declassification by leak without letting members of Congress who received classified briefings know of the “declassification” or allowing them to present rebuttal from the classified info; Padilla presser and Zubaydah/al-Qaeda misreps; the “broader” presidential surveillance program not briefed to Congress before the passage of telecom amnesty and the PAA; the tortured to death Iceman and the tortured to death 20 yo (and remember that the disinformation initiative for the rape murder of the 14 yo or so girl in Iraq and murder of her family by soldiers started with the release of info that she was in her 20s as well, so any youngish age floated is likely to have an even younger age in reality); hostage taking as the basis for coerced confessions; August 2002 notification to the Exec of the innocence of 1/3 or more of the GITMO detainees and failure to brief Congress on that; classification of opinions interpreting Congressional statutes into nullities; etc.

        Group them, get some Intel and Armed Services crew to go with the Judiciary, with Judiciary as lead though, and start with those bases and with a mandate of misleading and misrepresenting and nullifying Congress an the Courts, and you can do down a lot of lanes, with lawyers looking at losses of licenses and suddenly willing to cough up a few of the hairballs they’ve been accumulating.

        That’s going to clear the air more than anything IMO and crystallize cases for criminal prosecution with what will, bc of SOL and destruction of evidence etc. sometimes be the only viable prosecution routes (obstruction, false statements, etc.)

        all fwiw

    • emptywheel says:

      The hearing transcript, btw, shows Lamberth bitching about all the Gitmo cases he has to deal with right now, the implication being that that’s bc the govt fucked up. So he’s thinking about how Gitmo habeas petitions are swamping his Courthouse.

    • NCDem says:

      John Radsan was a major source for this very popular article from Dana Priest at WP.

      http://www.washingtonpost.com/…..01585.html

      When you read the article, it suddenly becomes a huge milemarker for today’s discussion in the House Intelligence on Cheney’s directive to keep the assassination squad away from Congress. Although the way she presents the case it involves much more than al Queada and it may have operated throughout the world in whatever nation needs a “shot in the arm”.

      According to Radsan, Bush was much more involved in the program than we have been led to believe in the last few days of press. Here’s a quote from the article.

      In the past, presidents set up buffers to distance themselves from covert action,” said A. John Radsan, assistant general counsel at the CIA from 2002 to 2004. “But this president, who is breaking down the boundaries between covert action and conventional war, seems to relish the secret findings and the dirty details of operations.”

      Like father like son, I guess.

  24. skdadl says:

    OT, but if you thought your government was amoral, we know that ours was “indifferent” to a clear threat from the Sudanese to disappear a Canadian citizen arrested in Sudan on advice from CSIS — and no doubt the CIA.

    “Canadian officials were told in no uncertain terms that Sudanese military intelligence would execute Mr. Abdelrazik if the Canadian government failed to repatriate him,” Mr. Champ said, referring to the chilling e-mail exchanges between Canadian diplomats in Khartoum and senior officials in Ottawa in March and April of 2006 – years after Mr. Abdelrazik was first imprisoned, apparently at the request of Canadian intelligence operatives in 2003.

    “I wouldn’t say that Canadian officials were necessarily giving Sudanese intelligence the green light to pursue a ‘permanent solution,’ but what’s sickening is they were clearly indifferent to that outcome,” Mr. Champ said.

    Despite a stark March 21, 2006, warning to Ottawa from Canada’s top diplomat in Khartoum that “this is, in effect, our last chance [to] keep military intelligence from taking expedient measures to deal with this case … and there is strong evidence that most of Sudan’s ‘disappeared’ did so at the hands of military intelligence,” Ottawa’s response was ambivalent.

    “You should restate our position and make no further comment,” Canadian diplomats in Khartoum were ordered in an e-mail marked “secret” from John Di Gangi, then the director of foreign intelligence at Canada’s Foreign Affairs department.

    We’ve been told that the U.S. case against Abdelrazik (who is now back in Canada) is based at least partly on evidence from AZ. Paul Koring, the reporter who broke this story over a year ago, obviously has some interesting sources somewhere, and his reports have driven what little justice we’ve seen so far.

    ETA: Link

  25. earlofhuntingdon says:

    Excellent post. It is the government’s credibility that is in shreds here, not just the DoJ’s or the CIA’s. It has been shredded in a voluntary, bipartisan manner by Bush and Obama alike.

    In Obama’s case, perhaps, by some twisted notion of “professional deference” to other lawyers, regardless of whether their behavior complied with the law or mandatory professional standards. The latter is fast becoming a contradiction in terms and contributes to the used car salesman reputation of the organized bar.

  26. Mary says:

    And fwiw, they need to use that to get to the bottom of this “we couldn’t get a FISA warrant quickly enough” and to get into how Congress can exercise oversight in the FISCt process, with no adversarial process. They could put a couple of judicary representatives on the investigatory panel and maybe put together a process for the FISCt to give reports to Congress along with the AG reports, so that the FISCt can a) tell Congress about violations of court orders and status of orders and knowledge of any violations of law or statute by the Exec; and b) respond to allegations that orders can’t be issued timely in certain situations, etc.

    And certainly Lamberth and Kollar-Kotelly would have a unique circumstance, if subpoenaed to testify to a closed investigative session on what kinds of firewall violations occured, what they told the Exec about the programs, whether the telecoms were aware of their input on the illegality of the program etc. That would be an intersting DOJ fight – against a subpoena asking judges to come and testify to congress about Exec branch violations of law known by a secret court, but with no recourse in the court to act on the violations bc of the “classified” nature of the briefings to them on the illegal activity.

  27. mack says:

    Re: Reynolds, This American Life had an interesting story on the precedent setting case wherein, after all these years, it is disclosed that the state secret was invoked to avoid embarrrassment and accountability.
    There was no National Security issue in Reynolds.
    http://www.thisamericanlife.or…..pisode=383