Whistleblower Protection Blog : Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

·      Considering all comments, remarks, or notes written by CIA FOIA analysts regarding their processing of FOIA requests as categorically exempt, regardless of the content;

·      Considering all training materials, guidelines, reference materials, etc. provided to CIA FOIA analysts as categorically exempt, regardless of the content;

·      Refusing to acknowledge the existence of any FOIA requests referred to it by other agencies;

·      Refusing to provide requesters with estimated dates of completion for their FOIA requests, as stipulated by law;

·      Refusing to provide specifics about information it withholds from requesters or its reasons for withholding the information, such that requesters cannot intelligently appeal any withholdings with any degree of particularity;

·      Utilizing significantly overbroad criteria to determine legitimate FOIA requests to be inadequate, and summarily cancelling them without first contacting requesters, as stipulated by CIA regulations; and

·      Refusing to recognize legal assignments of rights in FOIA requests from one requester to another

Many of these policies are not unique to the CIA, according to McClanahan, but the CIA is one of the “leaders” in this field. “If you look at an agency’s legal brief in any case where it is trying to justify withholding records, you’re more often than not going to see citations to cases involving the CIA,” McClanahan says. “That’s one of the reasons we’re suing the CIA, as opposed to other agencies. A victory here on any of these counts should propagate through the rest of the government, with the effect of not only shutting down these practices at the CIA, but at other agencies as well.” If McClanahan’s analysis is correct, this means that a large percentage of FOIA requesters will be affected by NSC’s litigation, and we wish them luck.

You can visit the National Security Counselors website for more information about the lawsuits, including copies of the complaints and other legal filings.

*Sabeen Khanmohamed (a NWC intern) contributed to this posting

As a presidential candidate, Barack Obama promised to “strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government.” See Scott Horton's prior article in Harper's Magazine, discussed in this prior blog post.  He also pledged to the National Whistleblowers Center that he would support legislation to give federal employee whistleblowers the remedies and procedural protections they have under Title VII (which includes a right to jury trials). But last May, The New York Times described how “the Obama administration is proving more aggressive than the Bush administration in seeking to punish unauthorized leaks.” Moreover, the Obama administration has shown its hostility to whistleblowers with (1) its preoccupation with stopping WikiLeaks, (2) prosecuting the group for publishing classified information, targeting WikiLeaks supporters with invasive harassment, (3) even serving subpoena on the Twitter accounts of several WikiLeaks associates, (4) its prosecutions of Thomas Drake and Bradley Manning, and (5) the failure to grant clemency to Brad Birkenfeld.

According to a new article by Scott Horton published in Harper's Magazine, Obama’s real policies are exposed in documents filed in the prosecution of former CIA agent James Stirling who was the alleged source behind the reports published by James Risen.ii In particular, one chapter in Risen’s book describes how a double agent turned on the CIA, after having disclosed the flaws built into some technical drawings designed to be worthless and which the agent had delivered to the Iranians. Thus, the CIA operation had actually advanced Iran’s nuclear project.

To justify the prosecution of Sterling, the DOJ contends that the disclosure harmed national security. But according to Scott Horton, the decision to go after Sterling seems to have more to do with “his violation of the intelligence community’s code of omertà, under which no agent ever speaks about another’s mistakes.”

In addition, Sterling’s defense lawyers, Ed MacMahon Jr. and Barry Pollack, revealed that the prosecution has turned over various telephone records showing calls made by Risen. The prosecution has also provided three credit reports for Risen, and has produced his credit card and bank records and certain records of his airline travel.

The revelation alarmed First Amendment advocates, particularly in light of Justice Department rules requiring the Attorney General to sign the subpoenas directed to members of the media and on requests for their phone records. Eric Holder had pledged that subpoenas issued against reporters would need the Attorney General’s approval. The question raised by Horton is the following: did Holder approve the Department’s secret seizure of Risen’s personal records?

In addition, Risen was subpoenaed to appear before a grand jury to testify about his sources. Last year, U.S. District Court Judge Leonie Brinkema quashed the subpoena. According to Horton, it looks like the Justice Department circumvented the ruling of a federal judge and grabbed Risen’s records even after its subpoena had been quashed.
The conclusion of the story is that the Justice Department asserts that it has weighed the people’s right to know, embodied in the Constitution, against the “right” of CIA officials “not to be embarrassed through the public disclosures of their mistakes,” and apparently the latter is the most important according to the DOJ.

Intern Julia Benke wrote this blog article.

The judge, Royce Lamberth, reluctantly approved a $3 million settlement in this case because of the government’s “state secrets” defense.  Judge Lamberth expressed irritation that government officials would not be held responsible to the public.  In announcing the settlement, Judge Lamberth stated:

“Now this Court is called upon to approve a $3 million payment to an individual plaintiff by the United States, and again it does not appear any government officials have been held accountable for this loss to the taxpayer. This is troubling to the Court.”

Though the plaintiff will receive some retribution, government officials will never take public responsibility for invading his privacy. Judge Lamberth raised the red flag on government abuse of the state secrets defense, pointing to previous similar settlements.

National security whistleblowers also fall victim to the “state secrets” defense, as the government claims their cases are just too sensitive to be tried in court. This defense often leaves whistleblowers with the stigma of “tattle-tales” and “traitors,” and without sufficient recourse for exposing scandals that pose a threat to our national security.  

In what could be the final blow for national security whistleblowers, the Whistleblower Protection Enhancement Act (S.372) does not limit, but expands the use of the state secrets privilege.  With the expansion of this privilege, the government will become less and less transparent, and whistleblowers will be silenced with greater ease.  TAKE ACTION and ask the Senate to fix this provision, or we will all be left asking, “What will the government hide from us next?”
 

*NWC intern Philip Barrett contributed to this post

On August 28, 2009, I wrote here about Chief Judge Royce Lamberth's extraordinary order requiring the government to issue security clearances to Richard Horn's attorneys so they could depose an investigator for the State Department's Inspector General. Since then, the government appealed that order and asked Chief Judge Lamberth to stay his order during the appeal.  On September 4, Judge Lamberth denied the request for the stay. Other legal wranglings followed, but the government's feet were put to so much heat that they caught fire.  The government offered Richard Horn $3 million to not only end the case, but also to agree that he would not oppose the government's motion to vacate Chief Judge Lamberth's prior orders.  Horn accepted in the agreement that was filed on November 3, 2009.

The government has now filed its motion asking Chief Judge Lamberth to vacate his prior orders. The government basically argues that the case is so old, and has caused so much trouble, that anything is worthwhile if it will end the case.  It also argues that the public interest in the case "is minimal." This I can hardly believe as the orders at issue have attracted worldwide attention on the issue of whether America's government can hold accountable those government officials who abuse their power. The government goes on to argue that "extraordinary circumstances" are not necessary to vacate its orders.

This last point caught the eye of the California lawyers for Al-Haramain Islamic Foundation, Inc., Wendell Belew, and Asim Ghafoor. Jon Eisenberg of Eisenberg and Hancock of Oakland, California, is suing the government over the Bush Administration's warrantless wiretapping program. Kim Zetter reports that the government has asserted the “state secrets privilege” in that case in an effort to keep the alleged wiretap victims from introducing into evidence a classified document the government gave them by mistake, which purportedly backs their claims that they were spied on. Joining with my friend Alan Kabat of Bernabei & Wachtel here in Washington, these lawyers filed an amicus brief with Chief Judge Lamberth accusing the government of failing to disclose the true state of the law.  They say that "extraordinary circumstances" are required to vacate a court's order.  They also note the obvious: the orders finding that the government officials committed a fraud on the court will be valuable to other litigants who are claiming that the prior administration resorted to lying to cover up their abuses of power.

It is now clear why the government is paying Richard Horn so much.  They could not escape liability for spying on him, and then lying to win the original dismissal of Horn's lawsuit. They desperately wanted to erase Chief Judge Lamberth's findings about how George Tenet and other officials lied to the Court. Their only hope was to buy off their opponent with the unique agreement that requires him not to oppose the government's motion for vacatur. Only then might the Chief Judge go along with the government's last motion. The settlement agreement contains this unusal provision: The United States contends that vacatur is of significant interest to the Government because the Government otherwise would prefer to contest what it sees as an erroneous application of the law.

Now we know just how valuable it is to the Government:  $3 million worth of value.  If Chief Judge Lamberth reads the brief of the Al-Haramain Islamic Foundation, Inc., however, the government may not get the vacatur it is seeking.  The Government may need to crank up its settlement machine again if it wants keep the California case from reaching the end Richard Horn originally sought.

Kim Zetter's article features a photo of a coffee table.  Unfortunately, it does not say if the photo shows the very table the CIA used to conceal its listening device in Richard Horn's apartment.

 Gerstein reports that an official of the Drug Enforcement Agency, Richard Horn, claims that the CIA put a coffee-table in his home which contained a surveillance device. Horn claims this happened in 1993 while he was stationed with the American embassy in Burma.  

The government initially got the case dismissed in 2004 by claiming that if the case proceeded, the CIA's undercover agent would have his cover blown.  The CIA neglected to mention that it had already rolled back the agents coverage in 2002.  The court of appeals reversed in 2007, and Judge Lamberth then determined that the case no longer needed to be kept sealed. Judge Lamberth determined that former CIA Director George Tenet committed a "fraud on the court" by submitting an affidavit that the CIA agent's identity was covert when it was not. "The fraud," Judge Lamberth says in footnote 3, "diminished the government's credibility." The judge is now considering a motion for sanctions filed by Horn's attorneys based on the CIA's prior fraud on the court.