Secrecy As An Enabler of Fraud

District court rulings unsealed yesterday serve as but the latest example of why those who reflexively genuflect at the altar of national security in the face of government assertions of classification or the state secrets privilege do so at their own peril. As reported in the Washington Post today:

A federal judge has ruled that government officials committed fraud while defending a lawsuit brought by a former DEA agent who accused a CIA operative of illegally bugging his home.

In rulings unsealed Monday, U.S. District Chief Judge Royce C. Lamberth wrote that he was considering sanctions against five current and former agency lawyers and officials, including former director George J. Tenet, for withholding key information about the operative's covert status.

The rulings, issued in recent months, highlighted what the judge called fraudulent work by CIA lawyers in defending a suit that Lamberth said had a lengthy and "twisted history." Brought in 1994 by DEA agent Richard A. Horn, the suit alleged that the CIA illegally bugged his residence in Rangoon, Burma, while he was serving in the country.

... the Justice Department, fought the suit and asked Lamberth to throw it out, invoking the state's secrets privilege. The government argued that the case involved information, including the operative's identity, that was too sensitive to be revealed in court.

Lamberth agreed and dismissed the suit in 2004.

...

Early last year, the Justice Department informed Lamberth that the CIA operative's cover had actually been lifted in 2002 but nobody told the judge or the appeals court about the change. A CIA lawyer learned about it in 2005 but did not alert the Justice Department, Lamberth or the appeals court, Lamberth wrote.

...

Lamberth called the decision to withhold the information a "fraud on the court."

"The CIA was well aware that the assertion of the state secrets privilege as to Brown was a key strategy in getting the case dismissed," Lamberth added.

In an order issued Monday, Lamberth ordered Yeates, Brown, Tenet and three current or former CIA lawyers -- John Rizzo, Robert J. Eatinger and A. John Radsan -- to file court documents explaining why he should not sanction them for the government's conduct. Attorneys for the officials and lawyers declined to comment or could not be reached. CIA spokesman George Little said the agency "takes seriously its obligations to U.S. courts."

Just one more example of how the Courts and the Congress should never accept on face value assertions by the executive that information must be withheld in the interest of national security.