Royce Lamberth: Let’s Make a Deal

Royce Lamberth appears to be having a split the baby moment in the Richard Horn suit.

As you recall, back in the Clinton era, a DEA official sued the government for illegal spying on him. He alleged that State and CIA conspired to thwart his efforts to cooperate with the Burmese government on drug eradication by spying on him and using information collected to trump up reasons to get him ousted from his post. The suit had been drawing on for years, most recently through the improper invocation of state secrets. Judge Royce Lamberth went ballistic last year when he discovered the CIA and DOJ had been lying to sustain their invocation of state secrets. As predicted, in response DOJ decided to settle the suit, not least because any decision on this case was going to imperil their effort to hide behind state secret to get away with illegally wiretapping al-Haramain. Since last fall, Lamberth has been deliberating whether to let them settle the suit, and/or whether he should go on with investigations into the government’s misconduct in the suit itself.

As Josh Gerstein reports, Lamberth has proposed an implicit deal with the government: if it will treat the case as it would have under Eric Holder’s new state secrets policy, he will allow the government to settle. His proposed deal is this:

  • Al-Haramain will be permitted to submit their amicus curiae brief opposing the vacating of Lamberth’s earlier opinion in the suit, but he will allow the settlement anyway (see this post for more background on the issue)
  • Horn will get his $3 million settlement and taxpayers will, as they did with the Hatfill settlement, pay to make up for the misconduct of government officials
  • DOJ will refer the misconduct of the CIA and DOJ in this case to the Inspectors General of those agencies
  • DOJ will also alert Congress to details of the case, in particular regarding “disturbing evidence” from a sealed motion “indicating that misconduct occurred in the Inspector General’s Offices at both the State Department and the Central Intelligence Agency”

Aside from the injustice (which Lamberth is bugged about, but not bugged enough to refuse the settlement) that taxpayers have to pay because government officials engaged in misconduct, this proposition will pretty much guarantee that the government gets away with its scheme to avoid legal consequences by invoking state secrets.

Plus, there’s a tremendous level of irony here. Some of the documents over which the government had invoked state secrets were IG Reports. Yet Lamberth’s proposal to make this right is to do more IG Reports? And while the CIA Inspector Generals has turned over at least twice since the misconduct in question, Lamberth is literally proposing that having CIA’s Inspector General investigate wrongdoing by CIA’s Inspector General will somehow make this right.

Update: I’ve been informed that there is a practice of having other IGs investigate when an agency’s IG is accused of misconduct.

13 replies
  1. phred says:

    This strikes me as bad news overall. Is there a silver lining in this deal somewhere that I am overlooking or has Article III just given a wink and a nod to Article II lying in court and pretended no harm done?

    • phred says:

      I hear the RNC already has consultants on their payroll to help with them with discipline ; ) Obviously, strictly for the benefit of their Article 1 members ; )

  2. BoxTurtle says:

    I call bullshit. Somebody must have to to Lamberth. Either that, or somebody convinced him that there was a real national security risk in proceeding with this case.

    Boxturtle (I’m with Fred, this is bad)

  3. burnt says:

    Well, in both the Horn and Hatfill cases I wish I had standing as a US taxpayer to recover damages for the Treasury. Alas.

    I realize pursuing perjury charges against the players in the Horn case is outside of Judge Lamberth’s purview. However, as I seem to recall in earlier postings about this case he hasn’t done anything to the people misbehaving in his courtroom besides say something like, “I’m really angry about this. I insist you stop.” Doesn’t the judge have some latitude to inflict some pain on the bad actors here?

    I wish Horn wouldn’t settle but I understand why he would.

  4. xxxmadam says:

    Burma which is near Bangkok, Thailand where my sex co-workers were being trafficked and jailed during this exact same time, 1993, same year madam Palfrey joined now imprisoned CIA Foggo who had an office there. This is where Obama was going last week when he canceled for the Heath care issue, the media reported it as “Indonesia”.

    Recall also several months ago when Judge Lamberth ruled in favor of the DEA for $3 million the exact same week 8 DEA were killed in Afghanistan. Recall Obama’s surprise midnight trip to the airport to meet the dead DEA.

    I sent this to Judge Lamberth:


  5. bmaz says:

    DOJ will refer the misconduct of the CIA and DOJ in this case to the Inspectors General of those agencies

    How they gonna do this?? IGs, even the DOJ IG, do not have putative jurisdiction over DOJ attorneys; and it was attorneys that are the offending DOJ parties. What am I missing here? Isn’t the Great Margolis going to have a conniption??

  6. earlofhuntingdon says:

    Letting Lamberth’s earlier opinion in this suit stand, not vacating it, ought to be part of the deal. Otherwise, the DoJ wins hands down, as the settlement itself will be deemed a state secret.

    Settling institutional misconduct charges solely by having taxpayers pay the wronged parties, but imposing no consequence on the errant executive, would seem to be the perfect way to ensure that such misconduct repeats itself. It’s almost as if the solution were being written by the same blokes who “fixed” the problems on Wall Street.

    • emptywheel says:

      I’m not sure I’ve yet properly characterized what the status of letting the al-H ac brief stand here.

      And in other, potentially related news, someone on twitter just said Walker is going to have an opinion out in that case tomorrow.

    • JTMinIA says:

      I totally disagree. The $3 million will be charged to the budget deficit of the appropriate administration and the history books (outside of Texas) will reflect this and that, alone, is enough punishment to avoid any repetition. /s

  7. earlofhuntingdon says:

    Budget hits are a private sector punishment that cost aspiring senior managers status and promotion at the pace such managers demand. They have little impact on the public sector, at least insofar as politicos are concerned; they are measured by sticking to message points, never speaking out of turn or embarrassing the boss, and adhering to strategies set on high.

    No political appointee will pay a price for that $3 million loss to the taxpayers, except possibly the civil servant(s) who pointed out it was a likely consequence of his or her masters’ conduct.

  8. timbo says:

    Wish I could count on Judge Lamberth to help fix the situation more directly. The real problem is that who does the Judge call on if he can’t count on the DOJ to actually not lie to him?

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