U.S. District Court Judge Lamberth has ordered the Central Intelligence Agency (CIA) to grant security clearances to the lawyers on both sides of a case so they can participate in the adjudication of what relevant evidence is properly classified. As first reported by Josh Gerstein of Politico.com, the order sets a new precedent for the limits on the executive branch's control over security clearances. The case is Horn v. Huddle, Case No. 94-1756 in the U.S. District Court for the District of Columbia.
Judge Lamberth said at page 12 that, "The state secrets privilege is a judicial doctrine, and when the Court evaluates the privilege, its evaluation is not merely and academic exercise. When the privilege is denied, the Court has the ability to order the information disclosed in litigation. Were the rule otherwise, the Executive Branch could immediately ensure that the 'state secrets privilege' was successfully invoked simply by classifying information, and the Executive's actions would be beyond the purview of the judicial branch. This would of course usurp the judicial branch's obligation 'to say what the law is.'"
The order concludes that, "the attorneys need to be involved in the process for the case to move forward while minimizing the risk to national security . . . the deference generally granted the Executive Branch in matters of classification and national security must yield when the Executive attempts to exert control over the courtroom."