Posted by Bill Conroy
July 26, 2009
Litigation also claims spook agency engages in wholesale spying on other federal agencies
The CIA was recently caught with its pants down.
As part of the course of his 15-year legal battle with the CIA, former DEA agent Richard Horn finally got the opportunity to demonstrate to the world that the emperor of clandestine activity has no clothes.
The secretive government agency is now coping with the embarrassing exposure of its deceit in a lawsuit filed by Horn, who previously served as the DEA’s country attaché in Burma (now officially known as the Union of Myanmar) from June 1992 to September 1993. In addition, the events that prompted the CIA’s lie appear to point to serious dysfunction within the agency that potentially poses a threat to the very U.S. national security it is charged with protecting.
The judge in Horn’s civil case, which is still pending in federal court in Washington, D.C., recently ruled that the CIA had committed a fraud on his court by failing to reveal in a timely manner that a CIA employee — who is key to Horn’s case — is no longer considered a covert operative. In fact, that employee, Arthur Brown, who served as CIA station chief in Burma at the same time Horn was DEA’s top gun in that Southeast Asian nation, had his official CIA cover lifted in 2002. The judge, Royce Lamberth, determined, based on pleadings filed in Horn’s case, that those responsible for the fraud allegedly include several attorneys with the CIA’s Office of General Counsel, and Brown himself.
The assertion of Brown’s covert status was key to the government’s defense in the Horn case since it was from that premise that former CIA Director George Tenant argued in 2000 court pleadings that Horn could not proceed with his case because the evidence he would need to present to prove his allegations was protected by state secrets privilege — a legal cloak designed to protect national security interests.
After Tenant filed his declaration with the court invoking state secrets privilege, Judge Lamberth discovered that several CIA attorneys were likely aware as early as 2002 that Brown was no longer officially deemed to be undercover, yet those attorneys and Brown failed to inform the court. That deception resulted in a ruling by Lamberth, and subsequently a U.S. Appeals Court, that hamstrung Horn’s case under national security restrictions and led to Brown being dismissed as a defendant in the case.
Earlier this week, Horn’s case finally made it onto the radar of the mainstream media after Judge Lamberth, clearly upset with the CIA’s dishonesty in the case, ordered that the court pleadings in Horn’s case be unsealed and made available for public viewing. The judge also ordered that Brown be reinstated as a defendant in the case and also indicated he would entertain civil, and possibly criminal, sanctions against Brown and several CIA attorneys as a consequence of the “fraud” they allegedly perpetrated against the court.
Narco News has previously reported at length on the Horn case in a 2004 story that was based on leaked court pleadings. That story can be found at this link.
Horn’s lawsuit was filed in 1994 against Brown and State Department Chief of Mission in Burma Franklin Huddle Jr., who also was stationed in Burma at the same time Horn served as DEA’s country attaché. In the litigation, both Brown and Huddle are accused of violating Horn’s constitutional rights by conspiring to plant an eavesdropping bug in his government-leased quarters in Burma. Horn also alleges in the lawsuit that the eavesdropping was part of a larger effort by Brown and Horn to undermine DEA’s anti-narcotics mission in Burma.
From Horn’s lawsuit:
While stationed in Burma, Horn made substantial progress working in concert with the Burmese government to improve its performance to address major drug issues, and Burma is and was the leading opium producing country in the world and is a major source country for the heroin that enters the United States. Even though the country of Burma was making substantial progress in its drug law enforcement efforts, Defendant Charge Huddle was sending reports to the Department of State stating that the government of Burma was not making any progress. Horn strongly encouraged Defendant Huddle to more accurately report on the drug situation in Burma to policy makers in Washington.
Horn alleges further that as a result of his efforts to expose Brown and Huddle’s dishonest agenda, the two launched a campaign to discredit him — which included illegally eavesdropping on his conversations in order to, among other motivations, dig up some dirt. The eavesdropping effort failed to produce any damaging information against Horn, yet in September 1993, Horn alleges, Huddle used his State Department authority to expel the DEA agent from Burma.
More from Horn’s litigation:
These actions by the Defendants [Brown and Huddle] were taken in furtherance of their political and personal agenda to thwart and undermine DEA’s mission in Burma … and to retaliate against Plaintiff [Horn] for Plaintiff's urging that the truth regarding Burma's drug enforcement efforts, which were substantial, be told to the U.S. Congress and the executive branch; whereas the DOS [Department of State] and CIA in its report to Congress desired to deny Burma any credit for its drug enforcement efforts. Plaintiff's “whistleblowing” would harm the dishonest DOS and CIA agenda, and thus the reason for Defendants’ actions. [Emphasis added.]
Horn’s case will now proceed, for the most part, in the light of public sunshine, under special procedures designed to protect, yet still entertain as evidence, sensitive government disclosures, according to Judge Lamberth’s recent rulings.
However, current CIA Director Leon Panetta is still seeking to invoke the state secrets privilege claim in the Horn case going forward, requesting that certain evidence, such as portions of two Office of Inspector General investigations into Horn’s allegations, be declared off limits for purposes of evidence in Horn’s case due to their national security implications.
But Judge Lamberth has already taken issue with Panetta’s claims, pointing out that his declarations on that front — one classified and one unclassified — contain contradictory information.
From a recent ruling issued by Lamberth:
Confusingly, Director Panetta’s unclassified declaration appears to significantly conflict with his classified declaration. His unclassified declaration states that: “Plaintiff [Horn] has provided a declaration in which he stated that the alleged wiretap at issue [the one allegedly planted in Horn’s government home in Burma through the orchestrations of Brown and Horn] … was allegedly the result of an eavesdropping transmitter placed under a coffee table located in [Horn’s] residence in Burma. … To the extent that this is his allegation, he is permitted to proceed with discovery to determine whether such a transmitter was used.”
Panetta later states, however, that [Horn] cannot inquire into information about the “U.S. Government’s capabilities to conduct electronic surveillance.” If a method of intelligence is unclassified and publicly available, it is not immediately apparent why it suddenly becomes a state secret to even argue that it could be used by the U.S. Government. Moreover, [Horn] makes a credible argument not only that the device is publicly known, but that the fact that the government uses this type of device is publicly available, as this type of device is on display at the Spy Museum in Washington, D.C. Indeed, Panetta’s classified … declaration significantly conflicts with the unclassified declaration and appears to acknowledge that the plaintiff can present evidence as to the coffee table eavesdropping transmitter, even if it is used by the U.S. government.
That battle is still to be fought in Horn’s case. But there is a larger issue raised in the Horn case that seems to shed some light on the CIA’s still ongoing extraordinary efforts to shield elements of the case under the draconian cloak of state secrets privilege.
The larger issue appears to be revealed in some of the other charges raised in Horn’s litigation. In addition to the eavesdropping allegations and the accusations that State Department Chief of Mission Huddle was sending misleading reports to Congress and executive branch agencies about Burma’s anti-narcotics efforts, Horn also contends that CIA Chief of Station Brown attempted to sabotage a DEA informant and also sought to undermine DEA’s high-level liaison contact with the government of Burma.
From Horn’s pleadings:
Included in this category was Horn's complaint that Brown surreptitiously obtained and delivered a sensitive DEA document, which he well knew was signed by a DEA informant, to an official of the government of Burma. [Horn] asserts this act was accomplished without ever consulting Plaintiff [Horn] or a representative of DEA. [Horn] asserts that Brown knew the government of Burma would likely engage in some form of retribution against the informant after seeing the document.
… In approximately September, 1992, Mr. Brown asked me [Horn] to introduce him to DEA's liaison contact. I refused, not wanting the Government of Burma to confuse the DEA mission with the CIA mission. DEA's mission was much different than the CIA's mission. It was the Government of Burma who designated who was to be each of the U.S. Government agencies’ liaison persons operating in Burma. Since the Burmese Government had designated DEA’s liaison in Burma, I, in conjunction with my superiors, believed that it was inappropriate for me to introduce my liaison contact to Brown, nor did DEA believe it was appropriate for Brown to share DEA’s liaison contact, since it was the Government of Burma that chose who was the contact. … Subsequently, in approximately November, 1992, Defendant Huddle told me that Defendant Brown approached him suggesting that he (Huddle) order me to restrict DEA liaison to police, and specifically, DEA discontinue contact with its present high-level contact [within the Burmese government]. Huddle told me he denied Defendant Brown's request. Huddle asked me to hold this conversation in confidence and not to reveal to Defendant Brown that I knew his motives.
Those revelations are important when connected with another piece of information disclosed in a declaration filed by Horn with the court. That declaration reveals that Horn had asked for help from Brown and the CIA in targeting a major narco-trafficker who was operating from an office in Rangoon, Burma.
More from Horn’s court pleadings:
During the same month, Horn discussed electronic eavesdropping with Brown. Horn asked Brown if his agency had the capability and interest to assist Horn in conducting an electronic telephone intercept (in DEA parlance a Title III, or in CIA parlance a "teletap") on the business phone of a major international trafficker who had an office in Rangoon [Burma].
[Emphasis added. A large block blacked-out text follows the above sentence in Horn’s declaration.]
Assuming Horn’s allegations are on the money, it does not seem an unreasonable speculation that part of Brown and CIA’s motives in thwarting DEA’s mission in Burma at the time might have been to protect the narco-trafficker, and possibly others, who would be compromised by a DEA investigation. And why would Brown, or the CIA, do such a thing if those DEA targets were not somehow deemed valuable to the CIA — possibly active CIA assets?
If that is the case, it might explain why the CIA, with the help of the State Department, sought to defang Horn in Burma.
In fact, as part of his litigation, Horn filed a class-action complaint on behalf of DEA agents who he claims have been subjected to similar clandestine efforts by CIA to sabotage their work overseas. The court dismissed the class-action complaint, but Horn’s attorney told Narco News that the issue might well be raised again as the case proceeds in the wake of the CIA’s past alleged deceits.
From the class-action complaint filed by Horn:
The interception of Hom's conversation [in Burma] was accomplished through a concerted effort by the Department of State, the CIA, and the NSA [which is part of the Department of Defense]. When later stationed in New Orleans as a Group Supervisor for DEA, Special Agent Horn [who is now retired from the DEA] acquired reliable information that it was a pattern and practice of the three Defendant agencies to intercept conversations that DEA agents and others had either from their GLQ's [government-leased quarters] in foreign posts, or from DEA offices at American Embassies, and Consulates and other locations at foreign posts. This pattern and practice was not isolated to this one incident in Rangoon, Burma, nor was it isolated to Special Agent Horn, nor was it isolated to the country of Burma, but instead, it was a pattern and practice of the three Defendant agencies to conduct such activity in other foreign posts wherein DEA has offices.
… Special Agent Horn and all of the DEA foreign post class Plaintiffs allege that it is a pattern and practice of these three Defendant agencies to unlawfully intercept and disclose conversations of DEA agents, other DEA employees, and family members at and from DEA agent offices, and their GLQ's and other locations at foreign posts, on a worldwide basis, and that this pattern and practice has existed for many years, and continues to be done by the three Defendant agencies against DEA Special Agents, employees, and family members serving in foreign posts, and will likely be continued in the future.
Horn’s attorney, Brian Leighton, a former federal prosecutor, told Narco News that he is convinced that this CIA surveillance dragnet is still quite active.
“I believe the CIA is still spying on DEA overseas,” he says.
The purpose of this extensive surveillance of other federal agents, according to Leighton, is to assure that law enforcement's overseas missions remain subsurvient to CIA’s agenda.
“Rick [Horn] is seeking monetary damages in his case, but he also wants to expose this [the covert surveillance] so that someone in Congress wakes up and realizes that DEA can’t be treated like the red-headed stepchild when it comes to overseas missions,” Leighton says. “We can’t assign DEA overseas and expect them to do their jobs and then let the CIA and State Department prevent them from doing that job, unless it is related to some huge, legitimate issue where an exception is warranted.
“But in that case, it can’t be the CIA deciding [what the exception is] because the CIA thinks its lunch menu should be classified. So it has to be someone outside that agency making these decisions.”
Narco News did seek a response from CIA about whether it engages in surveillance of DEA agents overseas.
CIA spokesman George Little provided the following response:
Separate and apart from any specific instance, this kind of allegation is absurd. The CIA is a foreign intelligence organization.
Brown, Huddle and the CIA itself have denied any role in setting up surveillance on Horn while he was stationed in Burma, according to court pleadings.
However, in court pleadings in the Horn case, Leighton points out that Michael E. Grivsky, an investigator with the CIA’s Office of Inspector General, told Horn “that former Rangoon [CIA Chief of Station] Arthur Brown may very well have employed a local informant to initiate the illegal intercept [of Horn] and not gone through official channels or utilized conventional CIA resources.”
That may well be the case. But even so, it still opens up a can of worms for the CIA, one the agency undoubtedly would like to keep shielded from public view.
Because, if the surveillance of Horn, and the accompanying efforts to sabotage DEA’s mission in Burma, occurred as alleged by Horn, and that activity was not part of an official CIA operation, then it means Brown was acting as a rogue agent in conjunction with Huddle, his cohort at the State Department.
If that’s the case, and the CIA, Congress and the White House does not come to grips with that reality, but instead seeks to continue shielding such activity under national security, what is to prevent such rogue activities from being carried out by other CIA officials now and in the future, since there would seem to be no check in place to discourage such adventurism?
It would seem, in such a case, the very core of national security, and the ability of the president of the nation to assure its preservation, would be put at risk, left to the unchecked avarice of CIA and State Department bureaucrats seeking to protect their turf, political agendas and career aspirations.
On a wide enough scale, tolerance by our elected leaders of such mechanizations, for the sake of avoiding political embarrassment or blowback, would subject the democracy to the capricious agenda of a self-interested group of bureaucrats who are beyond the control of even the White House. Even more disconcerting is the possiblity that this alleged CIA sabotage mission is actually officially sanctioned from within the agency’s covert chambers, in which case we may already be well on our way to becoming subjects of a shadow government.