Wednesday, July 22, 2009

Judge Accuses CIA Officials of Fraud, Unseals Secret Files

Judge accuses CIA officials of fraud, unseals secret files

Michael Doyle

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A federal district judge ruled Monday that the CIA repeatedly misled him in asserting that state secrets were involved in a 15-year-old lawsuit involving allegedly illegal wiretapping.

U.S. District Judge Royce Lamberth also ordered former CIA director George Tenet and five other CIA officials to explain their actions or face potential sanctions.

Lamberth also questioned the credibility of current CIA Director Leon Panetta, saying that Panetta's testimony in the case contained significant discrepancies, and rejected an Obama administration request that the case continue to be kept secret. He released hundreds of previously secret filings.

"The court does not give the government a high degree of deference because of its prior misrepresentations regarding the stated secrets privilege in this case," Lamberth wrote. "Although this case has been sealed since its inception to protect sensitive information, it is clear . . . that many of the issues are unclassified."

Lamberth's ruling comes as some members of Congress are questioning the CIA's credibility in a series of issues unrelated to the lawsuit, including allegations by House Speaker Nancy Pelosi that she was lied to about waterboarding and questions of why Congress wasn't told for eight years about what reportedly was a plan to assassinate al Qaida operatives. Last month, Democratic members of the House Intelligence Committee asked Panetta to withdraw a statement he made in May that it was not CIA policy to mislead Congress. The House members said it was clear from Panetta's own testimony about the unrevealed program that that was not the case.

The documents released Monday reveal a number of instances where Lamberth said the CIA misrepresented facts in the case, which was filed in 1994 by a former Drug Enforcement Agency officer who said his phone calls had been illegally intercepted while he was on duty in Burma.

The suit named a U.S. diplomat, Franklin Huddle Jr., and a CIA officer, Arthur Brown, as defendants. It had been under seal since it was filed, and former presidents Bill Clinton and George W. Bush had sought its dismissal on national security grounds.

Lamberth said the agency refused to make the "basic acknowledgement" that the spy agency possesses eavesdropping equipment, even though this is information quickly available through a "public online encyclopedia."

Lamberth also said that an unclassified declaration by Panetta "appears to significantly conflict with his classified declaration" over whether CIA eavesdropping technology is publicly known.

In addition, he noted that a declaration by Tenet was never updated after the relevant facts changed.

The issue that angered him most, however, was the CIA's failure to reveal that Brown, once undercover, had had his cover lifted in 2002. That fact wasn't revealed until 2008.

Lamberth concluded that the CIA's attorneys engaged in a "fraud on the court" by not revealing that Brown's name no longer needed to be kept secret. In fact, Lambert had dismissed the case in 2004, citing Brown's undercover status. An appeals court overturned that decision.

"The CIA was well-aware that the assertion of the state secrets privilege as to Brown was a key strategy in getting the case dismissed," Lamberth stated in a previously sealed Feb. 6 ruling, adding that the "misconduct by the government . . . (raises) very serious implications."

Lamberth's action Monday came days after a July 10 legal filing by Assistant Attorney General Tony West in which he said the CIA "regrets" not having informed judges earlier about Brown's changed status.

At the same time, the Justice Department attorneys insisted the name of the CIA's former assistant general counsel should remain secret for fear that his reputation would otherwise be harmed.

Lamberth, however, rejected that argument, releasing the files, demanding an explanation from Tenet and others, and revealing the name of the former assistant general counsel for the CIA, John Radsan.

He also ordered that Tenet, Brown, Radsan and CIA attorneys Jeffrey Yeates, John Rizzo, and Robert T. Eatinger explain their actions.

A Justice Department representative declined to comment Monday. A CIA spokesman told the Associated Press that the agency takes its legal obligations seriously.

Lamberth's ruling brings to the surface a 15-year-old lawsuit that the Justice Department under three administrations has repeatedly tried to bury.

The case was filed by retired Drug Enforcement Administration officer Richard A. Horn in August 1994. Horn accused Huddle, who was then the U.S. charge d'affaires at the U.S. embassy in Rangoon, Burma, and Brown of eavesdropping on his phone conversations while Horn was the DEA's attache in Burma. It was unclear what Brown's position was at the time; he eventually became the head of the CIA's East Asia division.

Horn and Huddle had a strained relationship, as diplomats and DEA drug-fighters pursued different agendas. In one legal filing, Horn claimed he wanted "the truth (concerning) Burma's drug enforcement efforts, which were substantial, be told to the U.S. Congress and the executive branch; whereas the (State Department) and CIA . . . desired to deny Burma any credit for its drug enforcement efforts."

Horn thought that Huddle was trying to force him out of the country. Horn said he found proof of the eavesdropping in a cable Huddle sent to Washington.

"Horn shows increasing signs of evident strain," Huddle's Aug. 13, 1993, cable read. "Late last night, for example, he telephoned his junior agent to say that 'I am bringing the whole DEA operation down here. You will be leaving with me.'"

Huddle claimed that he'd simply overheard other embassy officials discuss Horn's telephone conversation.

Brian Leighton, Horn's attorney and a former federal prosecutor, called Lamberth's decision "hugely significant."

He recalled that pursuing the case has been a struggle, requiring him to obtain a security clearance. "Sometimes, when I've filed a brief, it will come back with only one word not redacted," Leighton said. "Once, that word was 'the.'"

Monday he said Lamberth's decision was a victory, though the case has yet to be tried.

"Why is the government trying to hide (expletive) like this from us?" Leighton asked. "Why in the hell was this case sealed for so long?"

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