The CIA has decided to pay Richard Horn $3 million for a unique settlement of a fifteen (15) year-old spying case. The government not only wants Horn to dismiss the case and release the CIA and State Department officials who spied on him, but the government also wants Horn to promise that he will not oppose the government's motion to vacate the judge's prior orders finding that former CIA Director George Tenet committed a "fraud on the court." Having reviewed the settlement agreement, the government's motion to vacate, and an amicus brief filed in the case, it is now apparent to me that the government jacked up the settlement payment in an attempt to buy an erasure of its liability that it would not be entitled to under law. Kim Zetter of Wired magazine has written an article that provides helpful background to this most unusual case.
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.
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