As Predicted, the Administration Folds on Horn State Secrets Claims

After Eric Holder came out with his "new" state secrets policy last week, I had this to say:

As I pointed out last month, the Horn case in DC and the al-Haramain case in San Francisco are moving in remarkably parallel direction towards a CIPA-like process, in which the government can be required to provide substitutions for classified information, thereby allowing a suit to move forward even in the case of highly classified information. In both cases, the judge had advocated such a CIPA-like process. Because the government basically took its toys home and refused to cooperate in both cases, both cases either have (in the case of Horn) or will be (in the case of al-Haramain, regardless of what Judge Walker rules) headed to the Circuit Court in the near future. There are reasons to believe the Circuit would support the CIPA-like process in both cases.


Word is that Holder will use the "new" policy to withdraw the state secrets claim in one case, and by all appearances that one case will be Horn (I don’t know whether that means they will try to settle Horn, or whether they’ll just move forward with what amounts to a CIPA-like process without a state secrets claim behind it.)

Now of the three cases in question (Horn, al-Haramain, and Jeppesen), Horn is the one that was the biggest slam dunk legally to support a CIPA-like process (because of the fraud involved and the Circuit Court’s earlier limitation on the state secrets claim). It’s the one in which the Bush Administration’s claim to state secrets was most bogus. And it’s the least risky one to settle or litigate.

By withdrawing the claim of state secrets in Horn (if that is indeed what will happen), the Administration will avoid having the DC Circuit joining the 9th in supporting some kind of CIPA-process in state secrets, while still giving the Administration hopes of dismissing Jeppesen and al-Haramain based on state secrets.

Well, today we’ve got news that the government–after fighting Horn’s suit for 15 years–has all of a sudden decided to settle.

The Obama Administration may be in the process of heading off a court battle over the Executive Branch’s power to control classified information.

A court filing this afternoon discloses "an agreement in principle" to settle the case of Horn v. Huddle, a lawsuit brought fifteen years ago in which the Drug Enforcement Agency representative in Burma, Richard Horn, accused the CIA station chief and chief of mission of spying on him.

Now, the Administration did make a big show of pretending not to be bailing on this suit to protect state secrets by claiming, in an Appeals Court filing submitted the day after Holder’s "new" policy that this suit met the terms of that "new" policy.

On September 23, 2009, the Attorney General issued new Policies and Procedures Governing Invocation of the State Secrets Privilege. Those procedures apply to cases in which the government invokes the state secrets privilege after October 1, 2009. Nevertheless, the assertion of the privilege in this case satisfies the standards in the new policy concerning the applicable legal standards, narrow tailoring, and limitations on the assertion of the privilege. Moreover, the privilege as invoked in this case has been carefully reviewed by senior Department of Justice officials, who have determined that invocation of the privilege in this litigation is

But that’s a load of–what do the lawyers call it? Oh yeah, horseshit. See how that Appeals Court filing boasts that "senior Department of Justice officials … have determined that invocation of the privilege in this litigation is warranted"? Well, here’s what the actual "new" policy is.

Attorney General Approval. The Department will not defend an assertion of the privilege without the personal approval of the Attorney General (or, in the absence or recusal of the Attorney General, the Deputy Attorney General or the Acting Attorney General).

Call me crazy, but I’m guessing when they boasted about "senior Department of Justice officials" they didn’t mean, given that they didn’t say, "the most senior Department of Justice official." And since the Attorney General himself was undoubtedly available last week (because he was in DC issuing new policies on state secrets), but apparently not one of those "senior DOJ officials" saying this case merited the state secrets invocation, I’m guessing that means their claim that this case "satisfies the standards" of the "new" policy (which includes AG approval) is, oh yes, horseshit. A ploy, to establish a better bargaining position with Horn’s attorneys.

 And so once again, the Administration follows its now well-established policy of "compromising" right before Article III courts issue rulings that would reign in executive power, all in an effort to retain as much of that executive power as possible while looking all "changey."

Richard Horn, I do hope you get well-compensated for having had your government spy on you. After having been illegally wiretapped in an effort to sabotage your efforts to cut back the flow of drugs, followed by fifteen years of fighting for justice, you’ve earned that compensation.

32 replies
  1. Mary says:

    You know, the settlement between the parties still doesn’t resolve the fraud on the court issue, between the judge and the GOV declarants. fwiw.

    OT –…

    So we (the coalition) decide to drop a lot of leaflets in Afghanistan – like we did when we were buying people for human experimenation at GITMO.

    What could go wrong?

    We (here RAF) could kill a little girl with the box.

    RIP. I’d add a name for her, but in western press the children that die never seem to have names.

      • Mary says:

        How’s no, yes or maybe as an answer? *g*

        First there’s whether or not the court will even push on the fraud on the court issue, then there’s that it is tied to the more cut and dried aspect of the lies about when the cia agent became “de-coverted” so the off the cuff would be no – but in connection with a push on that fraud on the court issue I can see state’s secrets being raised in other ways defensively by DOJ/GOV/Tenet to try to squirm out. But in the context it has been raised so far in Horn it’s dead.

        • emptywheel says:

          And given the detail that Tenet is not settling?

          And given the detail that Royce Lamberth is no dummy and he likely sees this just as I see it–a cheap ploy to get out of an Article III court because they don’t like another branch flexing its muscles?

          • bmaz says:

            Tenet can’t “settle” he is a non-party. Re the contempt, usually that would merge into the court’s dismissal order after being notified by the parties that they have settled all pertinent claims among the parties in interest. But this is simply because judges lose interest and would rather just close cases than screw with them anymore; There is certainly no rule nor presumption that the contempt goes bye bye, and if Lamberth wants to send a message he can certainly pound away on contempt and determination of sanctions.

  2. MadDog says:

    Notice that former CIA Director Tenet (and one of the miscreants Judge Lamberth has his eyes on for contempt) did not agree to the deal:

    …Counsel for the non-parties have also been consulted concerning the parties’ joint motion. Counsel for George J. Tenet, Shirley Woodward, Esq., stated that Mr. Tenet opposes the parties’ joint motion. All of the other non-parties consent to the granting of the parties’ joint motion…

  3. freepatriot says:

    PPS: the politico crowd is strangly moot on this link

    I think this is a bit advanced for them

    admit it, you never saw any repuglitards in algebra classes …

    • emptywheel says:

      Actually, Josh Gerstein, who wrote that, has been all over this Horn case. He hasn’t been keeping as close an eye on al-Haramain and Jeppesen, though, and was less negligent than I was in covering the NY events last week (that is, he did cover them), meaning he didn’t follow the rolling state secrets reveal closely. But he actually deserves credit for keeping this story out there.

      But if Bill Clinton gets pissed that I didn’t do more on his CGI, please tell him I was trying to keep an eye on Eric Holder.

      • freepatriot says:

        I was referring to the politico peanut gallery

        I doubt if that pack of mouth breathers could understand the topic

        the lack of comments making reference to the “missing birth certificate” was refreshing

        nice to see a politico article without any

        there is a first for everything

        maybe it’s hard to find on politico. This article still ain’t drawn a mouthbreather comment, or a sane one (the sane voices are waaay outnumbered on politico, btw)

        I love reading the train wreck that poses as discussion on the right

        btw, kathy parked wrote a brilliant train wreck recently, I loved it …

        GO TIGERS

  4. fatster says:

    And now there’s this:

    Sep 30, 2009 3:17 pm US/Pacific
    N.Y. Judge: CIA Can Keep ‘Torture’ Info Secret
    Agency Won’t Be Forced To Divulge Key Information On 2005 Destruction Of Tapes Of Interrogations

    Federal Judge Alvin Hellerstein ruled Wednesday that the CIA does not have to divulge information related to their 2005 destruction of video tapes of suspected terrorists being interrogated.

    Federal Judge Alvin Hellerstein ruled Wednesday after viewing a few of nearly 600 documents related to the CIA’s 2005 destruction of videotapes documenting new harsh questioning techniques.


    • MadDog says:

      More from Reuters:

      …A U.S. federal judge refused on Wednesday to release records describing interrogation techniques authorized for overseas use by the CIA, saying it was up to the agency to decide if they should remain secret…

      …Hellerstein ordered the CIA to release one document containing handwritten notes of a CIA employee discussing the destroyed tapes…

    • klynn says:

      I sure do not read a “why” in that statement from Hellerstein. Just a “they don’t” have to. Odd response from a judge who has “had it” with the government up to this point. And the content that has been extracted to date points to the need to release more info.

      Hellerstein said a federal judge must defer to the CIA director in assessing information related to this issue of national security.

      Seems to me the content beyond the torture within the torture tapes is the issue. Based on this statement from him. See, clearing up the issue of torture and using the law to address it would improve our national security, unless there was something else on the tapes which would create a threat.

      The judge in Manhattan also said he probably would have ruled on the same grounds that the videotapes would not have to be released if they had not been destroyed.

      The tapes must show something in addition to torture which is a threat to national security. Which is why the tapes were destroyed. Their destruction was not accidental or “just regular policy”. There was intent in destroying them due to content beyond the torture, despite the torture being enough reason for officials to act illegally.

      So my question would be, “Whose national security is the ‘issue’ of national security regarding because ‘our’ national security would be enhanced (forgive me) by the exercise of rule of law in regards to accountability for torture?”

      Thus, we’re probably talking about protecting other nations to avoid a tragic escalation globally. Looks like a silent coup on the Constitution.

  5. MadDog says:

    OT, but on a topic near and dear to EW’s legions’ hearts, the ACLU has this juicy bit about the current state of play wrt NSLs:

    FBI Continues To Use Gag Order To Suppress Key Information About National Security Letters

    The FBI continues to use the gag order provision of the Patriot Act’s national security letter (NSL) statute to suppress key information about the agency’s misuse of NSLs, according to legal documents recently made public in an American Civil Liberties Union case challenging the constitutionality of an NSL gag order.

    Under the statute, the FBI can use NSLs to compel recipients, such as Internet service providers (ISPs), financial institutions and libraries to turn over sensitive information about innocent clients and subscribers, and then bar them from disclosing that they even received a record demand. According to the ACLU, by continuing to unconstitutionally enforce its five-year-old gag order on a John Doe NSL recipient and his ACLU attorneys, the FBI is suppressing key information that could help inform the ongoing congressional debate about the need to reform the NSL statute…

    …One of the legal documents recently made public reveals that the FBI continues to use the gag order to prohibit the disclosure of an “attachment” to the NSL Doe received that, if disclosed, would show that the FBI tried to obtain records that it was not entitled to obtain under the NSL statute…

    From what I can tell, the legal document the ACLU is referring to is this:

    Government Brief in Support of Continuation of NSL Gag Order (10 page PDF)

    Seems like Preet Bharara might be regretting that jump to the Big Apple.

  6. MaryCh says:

    And so once again, the Administration follows its now well-established policy of “compromising” right before Article III courts issue rulings that would reign in executive power,

    Gee, without the changey clause at the end, one would think you were writing about the previous Administration. The algebraist in me fears that

    Jealousy of powers of office > desire to clear the Augean Stables

  7. MadDog says:

    OT, but Rachel did another fantastic job contrasting Rep. Alan Grayson’s singular speech with that of the Repugs’ now constant demonic screeching.

    Sanity is the enemy of the crazy.

    When even the NYT’s Tommy Friedman, as the Villa vox vocis (Village voice), can no longer deny the Repug’s obvious and inarguable descent into crazy…

    And with Repugs, when crazy is all you have left, crazy is what you’re gonna get.

  8. orionATL says:


    lots of federal judges,

    been fussing about the gov’s conduct for some months/years now.

    will they ever rule?

    and if they do,

    will the five mitres at the supreme court negate their efforts?

    that latter, i suspect, is the reason that the most seasoned judges have been VERY slow to rule on state secrets.

  9. Mauimom says:

    Just when I think I’ve reached the depth of my disappointment with [and now contempt for] the Obama administration, they pull yet another rabbit out of the hat.

  10. Stephen says:

    Well we’ve certainly gone past the eleventh dimensional chess theory. The sad point is all these important judicial and constitutional issues fly well below the radar of the masses, thanks to our pathetic MSM. Rahm- Obama-Holder and company have got this down to an art form in short order. I get the feeling the scales are tipping way to the right and they are gonna stay there.

  11. floundericiousMI says:

    Marcy, I’m impressed!

    But that’s a load of–what do the lawyers call it? Oh yeah, horseshit.

    You are indeed learned in the technical language of law!

  12. bmaz says:

    But that’s a load of–what do the lawyers call it? Oh yeah, horseshit.


    Having taught you all you really need to know to analyze most law, my work here is done.

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