State Secrets

| Thu Nov. 5, 2009 3:30 PM PST

Here's an interesting little story.  Way back in 1993 a couple of CIA agents wiretapped a DEA agent in Burma named Richard Horn, and when Horn found out he sued both the agents and the CIA for violating his civil rights.  The case muddled along for years, and a couple of days ago the government agreed to a settlement.

So far, so boring.  But why, after 15 years, did the government finally cave?  Turns out it's because they were lying to the judge and got caught:

Earlier this year, U.S. District Judge Royce Lamberth suggested that the past and present CIA men may have perpetrated a "fraud on the court" through inaccurate declarations....Until Lamberth's angrily worded July decision, government attorneys had successfully argued that the lawsuit, first filed in August 1994, must be sealed to protect state secrets.

....Tellingly, Lamberth further hinted in September that the government could be on a losing course if the case went to trial, as he suggested that "the only secret the government might have left to preserve is the fact they did what Horn alleges."

The CIA had invoked the state secrets privilege, insisting that the case against one of its agents be dropped because he was working covertly and his identity couldn't be revealed.  And they kept insisting that even after his cover had been lifted.  When Lamberth found out, he was not a happy judge.

More here.  This is yet another data point that restates the obvious: just because the government invokes the state secrets privilege doesn't mean there really are state secrets involved.  Congress and the courts, who know this perfectly well, would be wise to demand a wee bit more judicial oversight in these cases instead of allowing the executive absolute discretion.  Pat Leahy's State Secrets Protection Act would be a good place to start.

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