Court Rules that CIA Committed Fraud in State Secrets Case

On July 20, a federal district court judge ruled that the Central Intelligence Agency (CIA) committed fraud while attempting to get a fifteen-year-old case dismissed on state secrets grounds.

In 1994, Richard Horn, a former agent of the Drug Enforcement Agency, sued Arthur Brown, then CIA station chief, and Franklin Huddle, Jr., the chief of mission at the U.S. embassy in Burma. Horn claimed the CIA unlawfully wiretapped him while he was stationed in Burma because they allegedly opposed his work to restrict that nation's drug trade.

Three administrations have pushed to get the case dismissed. In 2000, then-Director of Central Intelligence George Tenet requested the case against Brown be dismissed since Brown was a covert agent and his identity constituted a state secret. In response to this line of argument, the district court eventually dismissed the case in its entirety in 2004.

In 2007, the Court of Appeals for the DC Circuit overruled the dismissal of the case against Huddle. The court ruled that since Huddle was not a covert agent, a case could go forward against him, using unclassified information. However, the court upheld the removal of Brown from the suit because of his apparent continued status as a covert agent.

In 2008, however, the district court learned from the Department of Justice that Brown’s cover had been lifted in 2002. Despite this change in status, the CIA continued to claim that Brown was still covert. The discovery of this lie led to the district court's most recent decision. Judge Royce Lamberth wrote that it soon became “clear … that many of the issues [of the case] are unclassified.”

The ruling referred one of the CIA attorneys for disciplinary action for perpetrating fraud against the court. Five others involved in the case – three CIA attorneys, as well as Brown and Tenet – were given one month to defend themselves prior to charges of contempt or other sanctions being levied upon them. Over two hundred documents related to the case were also unsealed.

This ruling comes at an inopportune time for the CIA. The extent of the agency’s disclosure to Congress about torture and other activities during the "war on terror" has come under a great deal of scrutiny in recent months. Some, such as Rep. Rush Holt (D-NJ), have begun to suggest that Congress undertake a comprehensive investigation of intelligence operations, comparable to that undertaken by the Church Committee in the 1970s. “Sure, there are some people who are happy to let intelligence agencies go about their business unexamined,” explained Holt. “But I think most people when they think about it will say that you will get better intelligence if the intelligence agencies don’t operate in an unexamined fashion.”

The state secrets privilege, an evidentiary privilege formalized in 1953 in United States v. Reynolds, permits the executive branch to withhold specific evidence at civil trial if there is a reasonable risk that disclosure would harm national security. This privilege has received a great deal of attention of late, especially given the contention of many that it was overused during the George W. Bush administration. President Obama promised a review of the use of state secrets, but in the meantime, his administration has maintained claims of privilege in all of the cases it inherited from the Bush administration. Two bills (H.R. 984, S. 417) currently before Congress would provide for greater scrutiny of state secrets claims in order to balance security concerns with proper oversight.

Image in teaser from Wikimedia Commons. This image is in the public domain.

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