State Secrets: Holder’s Game

I’m still working on understanding this, but here’s what I think the Obama Administration was trying to achieve with its "new" policy on state secrets the other day.

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.

Add in Jeppesen (Binyam Mohamed’s extraordinary rendition suit against a Boeing subsidiary), in which the 9th Circuit has already ruled that state secrets must be tied to evidence and not information, and it appears clear that the Courts might roll back state secrets as currently treated. 

And, at the same time, Jerrold Nadler and Pat Leahy have been negotiating new State Secrets legislation with the Administration. Nadler and Leahy, too, have been advocating a similar kind of CIPA-like process.

What the "new" state secrets policy appears designed to do is buy time and limit the legal battlefields on which the Administration tries to stave off a CIPA-like process.

Legislatively, it appears the "new" policy (and presumably some pressure on Leahy directly) has convinced Leahy, at least, to hold off on moving his legislation forward. He seems to be content to wait and see how this new policy plays out. Nadler, on the other hand, seems to want to push forward with legislation (so is Russ Feingold, but he’s not in the same position to push forward Senate legislation as Nadler is). So at the very least, Holder’s "new" policy will buy the Administration time before Congress tries to reel in executive power.

Then there’s Horn. 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.)

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The Royce Lamberth-Vaughn Walker Golf Match

Call me crazy. But reading yesterday’s Royce Lamberth opinion on the Richard Horn case (see bmaz’ post for background) makes me think that Lamberth–Chief Judge for the DC District–and Vaughn Walker–Chief Judge for the 9th District–have been playing golf together recently at some Chief Judges August retreat or something. Because Lamberth’s opinion could have been written by Walker in the al-Haramain case, except of course the underlying facts–but not the Obama Administration’s legal stance–are totally different.

Here are the similarities:

Appeals Court Ruling in Favor of State Secrets Set Aside

In both cases, the Appeals Court in question at least partly ruled in favor of the government’s State Secrets invocation only to have something set that aside. In the Horn case, it was the discovery that the CIA had been lying its ass off in its declarations for years. In the al-Haramain case, it was Walker’s ruling that FISA trumped State Secrets.

This is of course the biggest difference between the underlying facts: the Appeals Court has already substantially rejected the State Secrets invocation in this particular case, whereas in al-Haramain, a statute has (at least for now) been ruled to set aside the State Secrets invocation. But the practical result is the same: the government is still, functionally, insisting on treating the litigation as if State Secrets still held and with that stance, basically arguing that executive authority over classification and secrecy trumps separation of powers. 

Government Refusal to Acknowledge a Court Ruling

In order to proceed as if the State Secrets claim still held in each case, the government is simply proceeding as if the Court judgments have no authority. In al-Haramain, the government repeatedly refused to acknowledge Walker’s decision that FISA did trump State Secrets, continuing on as if it still could protect all the information in the suit. In so doing, it was basically trying to negate the very idea that FISA restricted executive branch actions.

In Horn, the government is trying to claim privilege to prevent the plaintiff from making even a circumstantial case that the government illegally wiretapped him.

Notably, the government’s protective order, supposedly based on the assertions of privilege by Director Panetta, would not even allow the plaintiff to build a circumstantial case that U.S. Government eavesdropping equipment was used to eavesdrop on him, because the protective order would prohibit the plaintiff even from making this argument.


The government’s interpretation of Panetta’s assertion of the privilege, if sustained, would eviscerate the Court of Appeals decision that the very subject matter of Horn’s action is not a state secret.

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Panetta’s Parsings

As bmaz reported yesterday, in addition to the five current and former CIA officers whom Judge Lamberth has said were invoking state secrets to protect something that wasn’t secret anymore, Lamberth also criticized a declaration he received from Leon Panetta invoking state secrets anew. He describes Panetta’s declaration this way:

Director Panetta’s unclassified declaration appears to significantly conflict with his classified declaration. His unclassified declaration states that: "Plaintiff has provided a declaration in which he stated that the alleged wiretap at issue in this case was allegedly the result of an eavesdropping transmitter placed under the coffee table located in his residence in Burma… To the extent that this is his allegation, he is permitted to proceed with discovery to determine whether such a transmitter was used." (Panetta Unclassified Decl at 9) Panetta later states, however, that the plaintiff cannot inquire into information about the "U.S. Government’s capabilities to conduct electronic surveillance." id. If a method of intelligence is unclassified and publicly available, it is not immediately apparent why it suddenly becomes a state secret to even argue that it could be used by the U.S. Government. Moveover, the plaintiff makes a credible argument not only that the device is publicly known, but that the fact that the government uses this type of device is publicly available, as this type of device is on display at the Spy Museum in Washington, D.C. Indeed, Panetta’s classified, ex parte declaration significantly conflicts with the unclassified declaration and appears to acknowledge that the plaintiff can present evidence as to the coffee table eavesdropping transmitter, even if it is used by the U.S. Government. Panetta states: "Plaintiff has alleged that the defendants used an eavesdropping transmitter placed under the coffee table located in his residence in Burma. He has also stated that these types of transmitters are publicly available and on display at the Spy Museum in Washington, D.C. To the extent that the theory of his case is that the defendants conducted the alleged surveillance using purely unclassified, publicly available methods, I do not assert the state secrets or statutory privileges. To the extent Plaintiff’s discovery attempts to sweep more broadly, and to inquire about other intelligence capabilities … such discovery cannot proceed …." (Panetta Classified Decl. 21) Read more

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 Read more

Comments on Mukasey’s Call for an Election-Season Showdown

Just as a follow-up to this post, a couple of official comments.

From DC District Court Chief Judge Royce Lamberth, who has already set into motion an expedited process for the detainees:

I am pleased that Attorney General Mukasey said that our ‘court should be commended for the preliminary steps it has taken thus far to provide for the fair, efficient, and prompt adjudication of these cases.’ Guidance from Congress on these difficult subjects is, of course, always welcome. Because we are on a fast track, however, such guidance sooner, rather than later, would certainly be most helpful.

From Harry Reid:

As a result of its repeated efforts to circumvent the requirements of the Geneva Conventions and the Constitution, the Bush administration has yet to bring to justice the perpetrators of the terrorist attacks of September 11. If legislation is needed, it is important that Congress proceed in a deliberate and thoughtful way to write rules that will not be thrown out by the courts yet again. Congress must hold public hearings, consult with national security and legal experts, and take the time to get this right. It is hard to imagine that Congress can give this complex issue the attention it deserves in the closing weeks of this legislative session.

The courts are well equipped to handle this situation, and there is no danger that any detainee will be released in the meantime.

From Patrick Leahy:

The Supreme Court’s 5-4 decision in Boumediene v. Bush last month reaffirmed our core American values by concluding that detainees at Guantanamo have the right to bring habeas corpus claims in federal court. I applauded that decision because I have maintained from the beginning that the provisions of the Military Commission Act that purported to strip away those rights were unconstitutional and un-American.

The Judiciary Committee has held a wide range of hearings on issues of detainee rights and procedures. Attorney General Mukasey’s call today for Congress to create new rules for these habeas proceedings is the first I have heard from the Administration on this issue. Given the Judiciary Committee’s long interest in this subject, it is regrettable that the Attorney General neither consulted with nor informed the Committee about this request before his speech.

The Courts have a long history of considering habeas petitions and of handling national security matters, including classified information. Read more

Lamberth Doesn’t Seem to Think the Boumediene Sky Is Falling

Because Chief Judge Royce Lamberth of the DC Circuit (where many Gitmo habeas petitions are currently pending) sure seems to be moving forward on developing procedures to give the Gitmo prisoners their habeas petitions.

U.S. District Court Chief Judge Royce C. Lamberth met today with lawyers from the Department of Justice and representatives of the Guantanamo detainees to discuss how the court should proceed in light of last week’s Supreme Court decision in Boumediene v. Bush.  In the off-the-record meeting, lawyers for both sides discussed a number of security and procedural issues that are common to many of the nearly 200 cases pending before the court.  “We had a constructive meeting today and will have a follow up meeting next Wednesday.  I plan to meet soon with the judges of this court to discuss the lawyers’ suggestions for how we can move these cases most efficiently and expeditiously,” said Chief Judge Lamberth.          

"Efficiently and expeditiously." Golly. Once again Article III seems to be missing the Republican script about how the Boumediene decision is the end of the world.


Amid the excitement yesterday, you may have missed the news that the White House visitor logs are public documents.

A U.S. judge ordered the Secret Service on Monday to disclose records of visits by nine prominent conservative Christian leaders to the White House and Vice President Dick Cheney’s residence.

The ruling, in response to a legal watchdog group’s suit, could shed light on the influence leaders like James Dobson of Focus on the Family have had on President George W. Bush’s administration. It may also affect legal efforts to force the release of visiting records of convicted lobbyist Jack Abramoff and other similar cases.

I’m sure this will be in the Courts for another year and a half–at which point Dick will invite Scalia to go quail hunting again, and we’ll never get the records.

But for now, look at the oozing skepticism of Judge Royce Lamberth. He describes the fluid nature of Secret Service records.

The Secret Service’s past retention practices for WAVES and ACR records have proven to be pliant and evolving. Paul Morrissey, the Deputy Assistant Director of the Office of Protective Operations, declares that every 30 to 60 days the Secret Service will copy the WAVES records stored on the Secret Service’s “servers” to a compact disc (CD-ROM). 3d Morrissey Decl. at ¶ 18. After making a copy of the records, the Secret Service transfers the CD-ROM containing the WAVES records to the White House Office of Records Management (WHORM). Id. at ¶ 18. A WHORM employee “typically signs a form acknowledging receipt of the records.” Id. After delivering the CD-ROM to the WHORM, the Secret Service erases the WAVES records “from its computer
system.” Id. The Secret Service’s practice of purging and overwriting WAVES records that are “older than 60 days” occurred from “at least 2001” until “November 2004.”[my emphasis]

And then elaborates on that in a footnote. Read more