A tentative settlement has been reached in a long-running suit that alleges a former intelligence agent and a State Department official unlawfully eavesdropped on a DEA agent, potentially bringing the state secrets case to an abrupt close and sparing the Justice Department a loss on appeal.
Justice lawyers filed notices yesterday evening about the proposed settlement. The notices were filed in the U.S. Court of Appeals for the D.C. Circuit, where the case is pending, and in the U.S. District Court for the District of Columbia, where the case was filed in 1994. The agreement was reached through the assistance of the D.C. Circuit’s appellate mediation program. The lawyers asked for a 30-day hold on the proceedings in both courts.
The closely watched suit has been prolonged as the lawyers for both sides fought over, among other things, the merits of the government’s state secrets privilege and whether the lawyers in the case can and should have access to classified information. The case stalled again in August when the Justice Department appealed a ruling in the trial court.
In August, Chief Judge Royce Lamberth of federal district court in D.C. ruled that the lawyers for both sides have a need to know the classified information that their clients have in their memories. Lamberth directed the Justice Department to grant security clearances to the private lawyers for the plaintiff and defendants. Click here for the opinion.
Justice lawyers said the ruling, if upheld, could have a grave impact on national security. Only the executive branch has the authority to determine whether a lawyer has a need to know classified information, Justice lawyers said. Department attorneys called Lamberth’s ruling a violation of separation of powers.
But the potential for an adverse appellate ruling against Justice could vanish if the plaintiff, Richard Horn, settles with defendants Arthur Brown and Franklin Huddle Jr. Justice is paying private lawyers to represent Brown, a former CIA agent, and Huddle, a former State Department official.
Brown’s lawyer, Morrison & Foerster partner Robert Salerno, declined to comment because, he said, the negotiations are confidential. Huddle’s counsel, David Maria, an associate at Latham & Watkins, also declined to comment.
Horn’s lawyer, Brian Leighton, a solo practitioner in Fresno, Calif., told The National Law Journal last month that settlement talks were ongoing. He declined to discuss the substance of the negotiation. Justice Department attorney Paul Freeborne of the Civil Division declined to discuss the case when contacted last month.
Lamberth, who has presided over the case since 2000, once told both sides that the case would have a “tragic ending” if it were allowed to proceed to trial.
Lamberth’s ruling in August garnered significant attention among lawyers who practice in the national security arena. Lamberth said in court papers that his ruling was unprecedented. The Horn case, he said, presented “vexing” legal issues. Justice lawyers called the ruling "extraordinary."
A panel of D.C. Circuit judges expedited the appeal; argument could still happen as early as this fall if the proposed settlement falls apart.
Leighton, Salerno, Maria and three other lawyers in the case have all received security clearances. But a security clearance alone is not enough to get access to classified information, a Justice lawyer, H. Thomas Byron III, said in a brief filed Sept. 24 in the D.C. Circuit.
In the Guantanamo Bay detainee litigation, the Justice Department agreed to grant security clearances and access to some classified information because, among other things, the liberty interests of the detainees were at stake, Byron said in court papers.
The federal government first asserted the state secrets privilege in the Horn case in 2000, under then-CIA Director George Tenet. Justice lawyers said the privileged information was rooted in intelligence activities, sources and methods. The information also contained the identity of covert officers and their roles in government service.
Lamberth dismissed the case in 2004, saying the state secrets privilege prohibited Horn’s claims against Brown, a former CIA agent, and Huddle, a former State Department official, from moving forward. (Horn’s suit alleges Brown and Huddle conspired to get Horn removed from Burma, where Horn was stationed in the 1990s. In 1993, Horn was relocated to a DEA office in New Orleans.)
But the D.C. Circuit reversed and remanded the case in 2007, saying that the litigation could proceed if it skirted around the state secrets information. The appeals court said the case against Brown could not go on at all since his identity was, at the time, protected information.
Then, in 2008, Justice lawyers broke news to Lamberth that set the case on a new path: Brown’s secret identity had been lifted in 2002 and rolled back—meaning that his name, and his job, were no longer protected.
Lamberth made Brown a defendant again, and the judge launched contempt and sanctions proceedings against a group of CIA lawyers who the judge said had committed fraud on the court. Lamberth referred one CIA lawyer, Jeffrey Yeates, to the U.S. District Court Committee on Grievances.