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."
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.