Alex Constantine - November 4, 2009
legaltimes.typepad.com | November 04, 2009
The federal government has agreed to settle for $3 million a long-running suit in federal district court in Washington that alleged a former CIA officer and a State Department official unlawfully eavesdropped on a drug enforcement agent in Burma.
The terms of the agreement were detailed in court papers filed Tuesday night in the U.S. District Court for the District of Columbia. The suit, filed by former DEA agent Richard Horn, was filed in federal court in 1994. The litigation had been under seal until this summer.
The suit has dragged on amid disputes about the state secrets privilege and whether and how much access the opposing lawyers should have to confidential information. In July and August, Chief Judge Royce Lamberth issued rulings against the Justice Department in which he ordered the government to provide security clearances for the private lawyers in the case. Justice attorneys were appealing the ruling when a tentative settlement was reached last month.
“This case has been pending for fifteen years, and the parties and the United States have now reached a comprehensive, global settlement of claims after extensive negotiations under the auspices of the Court of Appeals mediation program,” Justice attorney Alexander Haas of the Civil Division federal programs branch said in court papers. Click here for a copy of the settlement agreement.
Horn’s lawyer, Brian Leighton, a solo practitioner in Clovis, Calif., said Tuesday in an interview Tuesday night that the government “totally miscalculated our perseverance and resolve” in the litigation. Horn and Leighton have known each other for years, ever since Leighton’s days as a federal prosecutor in California. Leighton took the case on a contingency fee basis. He declined to comment on his portion of the settlement.
“They always thought we would die or go broke or give up. What they did by their shenanigans is make law that was very bad for them.”
Lamberth’s rulings against the government are not binding, and the U.S. Court of Appeals for the D.C. Circuit did not have a chance to rule whether a federal district court judge has the power to order the Justice Department to provide security clearances. The lawyers in the case had all passed background checks. Still, Justice attorneys said the private lawyers did not have a need to know confidential information. The department twice invoked the state secrets privilege, first in 2000 and then earlier this year, under CIA Director Leon Panetta.
Former CIA officer Arthur Brown’s lawyer, Robert Salerno, a partner in the Washington offices of Morrison & Foerster, said in a statement today: "Art Brown did not do whatever Horn imagines happened back in 1993, and the settlement agreement does not contain any admissions or otherwise validate Horn’s bizarre allegations." Former State Department official Franklin Huddle’s counsel, Donald Remy, a partner in Washington with Latham & Watkins, was not reached for comment this morning. The Justice Department has been paying the legal bills for the defendants, who were sued in their individual capacity. The settlement agreement said the government does not admit liability.
The case isn’t over just yet. Justice lawyers are urging Lamberth to vacate opinions and orders he issued in January and in February that are tied to allegations that CIA lawyers intentionally concealed important information from Lamberth and Leighton. The Justice Department also wants the judge to vacate opinions in July and in August that the government said in court papers go against the public interest. A copy of the Justice Department's motion to vacate Lamberth's rulings is here.
In the two earlier opinions, Lamberth found the CIA committed “fraud on the court” in concealing the fact that Brown’s identity as a covert officer had been lifted and rolled back in 2002. In 2008, after Lamberth learned from the Justice Department that Brown’s employment as a covert officer was no longer confidential, the judge reinstated Brown as a defendant in the case. (Brown had been removed as a defendant since nothing about his employment could be litigated.)
The continuation of sanctions proceedings could require litigation over access to classified materials, said Haas of the Justice Department.
“In light of the settlement of this action by the parties and the United States, the Government believes that any ancillary proceedings arising out of the now settled case should also come to an end and the underlying orders and accompanying opinions should be vacated to further the parties’ global [resolution],” Haas said in court papers.
Lamberth once told the lawyers in the case that the litigation would have a "tragic ending" if it were allowed to proceed to trial. The chief judge has said in court papers that Horn’s suit has presented “vexing” legal issues. He said his order compelling the Justice Department to provide security clearances was unprecedented. Plaintiffs lawyers who practice in the national security arena heralded the ruling.
Horn’s suit cost the Justice Department “ the wrath of the court and some decisions that were bad for the government’s standpoint,” Leighton said. “They had to get spanked really hard before they would come to the bargaining table.”