State Secrets, Informed Judgment, Charlie Rose and Sloppy Trade Craft

Updated below:

When the government asserts the state secrets privilege in a judicial proceeding, and asserts that the disclosure of information would pose a “reasonable danger” to national security (or, as of today, “significant harm” to the national defense or foreign relations), what obligation should the government be under to make an informed decision that not only can the information be appropriately classified, but that it should be classified? Furthermore, in asserting this privilege, what should be the consequences when the government itself fails to protect that information? Should it still be allowed to assert the privilege?

As discussed in an earlier post, the current framework for classification does not require that all information which can cause harm to the national security should be classified. Agencies are expected to apply judgment and discretion in making informed decisions to classify information originally as well as in making decisions to continue classification.

In asserting the state secrets privilege, a common law rule of evidence, the Executive branch of the government seeks to secure dismissal of litigation brought to protect important constitutional and statutory rights. In doing so, the Executive is often obscuring governmental policies or actions that abridge those rights. Thus, when asserting this privilege, is it reasonable to expect the Executive to take on the additional burden of ensuring that informed judgment is being applied to the decision to continue the classification of the information involved in the first place? Based upon recent government action in a case involving assertion of the privilege, the Executive branch apparently does not.

Such is the situation in the extraordinary case of a former DEA agent who has accused a CIA operative of illegally bugging his home while serving in Burma in the early 1990’s. While the very nature of the state secrets privilege makes it difficult to discern what the “secret” is that the government is attempting to protect, in this case (Horn v. Huddle, et. al.), one of the state secrets turns out not to be a secret in the first place and another may quite possibly be a highly dubious secret.

The first assertion of the state secrets privilege dealt with the identity of the CIA operative. Both a Federal District Court (in 2004), and a Court of Appeals (in 2007) upheld the government’s assertion of the privilege in this instance based upon the claim that the identity of the CIA operative was classified. The only problem is that in 2002, the CIA “lifted” and “rolled back” the operative’s cover to his entrance on duty date with the CIA over 20 years earlier (which meant his employment by and assignments with the CIA were declassified). Much has been written about the judge’s finding that the Executive branch's conduct constituted a “fraud on the court” (i.e. “fraud which is directed at the judicial machinery itself”) and I will not address that aspect here. Instead, I want to focus on the original decision to “lift” and “roll back” the operative’s cover.

The use of cover for overseas operatives of our nation’s intelligence service is clearly appropriate, as is the need to protect the cover by means of classification, even after the individual no longer serves overseas (e.g. Valerie Plame). However, it is not unusual after a careful assessment to declassify an operative’s cover and even role it back, especially after an operative has assumed a senior position within the Agency. Such apparently is the situation with the CIA operative in this case, Arthur M. Brown, who has been reinstated as a defendant in this lawsuit. Prior to his retirement from the CIA, Brown was the East Asia Division Chief within the National Clandestine Service. His cover was declassified in 2002, presumably through the application of an informed judgment by Agency personnel.

Who knew what when is obviously of significant import and the District Court judge in this case is considering sanctions against five current and former agency lawyers and officials, including former CIA director George J. Tenet, for withholding key information about the operative's covert status. However, even disregarding this issue, there remains a significant unanswered question – i.e. before making the extraordinary assertion before the Court of Appeals in 2007 that disclosure of Brown’s identity would pose a “reasonable danger” to national security, why did not the government make an informed decision that this was still the case? Apparently, in making this assertion, they applied zero judgment. At any step of the way if anyone on the government’s side asked the simple question “should this information still be classified,” the answer would have been apparent to all. In fact, no sensitive intelligence sources or methods had to be employed to ascertain that 2 years prior to the Court of Appeals hearing, Brown appeared on the Charlie Rose show, clearly identified as a former CIA official and current Senior Vice President of Control Risks Group, an international consulting company. Thus, the government clearly asserted the privilege in this instance because they thought they could, not because they determined they should.

The second issue dealt with Horn’s claims that in late November 1992, while he was out of town, someone entered his apartment in Burma and replaced a rectangular government-issued coffee table with an oval table without consulting him. Horn was later told that his “original coffee table was needed to complete a sofa set at another residence.” Horn characterized this conduct as “peculiar”— primarily because the previous table perfectly matched his furniture set, while the replacement did not. However, he later came to believe that the oval table was a listening device, after discovering that Huddle and Brown were privy to details of conversations he’d had while in the room where the table resided.

The above allegation was the subject of an IG investigation – however, the government has asserted the state secrets privilege for many key parts to two IG reports, thus allowing the government to claim that Horn’s allegations are “unsupported assertions.” However, if Horn’s allegation is, in fact, supported by portions of by the IG Reports, that would mean that government personnel, by clumsily replacing a rectangular table with an oval table, employed exceedingly sloppy trade craft. Under such circumstances, should the government be allowed to assert the privilege even if it is the government that compromised the intelligence method in the first place?

The state secrets privilege is an absolute power. Prior to asserting it, the Executive must be required to apply much greater diligence than it has in the case. Apparently, the Obama’s administration’s new standards do not require such diligence in that, as quoted in Secrecy News, in a brief filed last week the government stated “the assertion of the privilege in this case satisfies the standards in the new policy concerning the applicable legal standards, narrow tailoring, and limitations on the assertion of the privilege. Moreover, the privilege as invoked in this case has been carefully reviewed by senior Department of Justice officials, who have determined that invocation of the privilege in this litigation is warranted."

The finding of "significant harm" in the event the information is disclosed should be insufficient alone to assert the state secrets privilege. That is tantamount to simply asking the question "can this information be classified?" The standard (or hopefully legislation) must go further and ensure that the question "should this information continue to be classified?" is asked as well -- especially in view of the impact the assertion of the privilege can have on the rights of the citizenry. The safeguarding of our civil liberties requires nothing less.

Update:

Per Josh Gerstein at Politico on September 30, 2009:

A court filing this afternoon discloses "an agreement in principle" to settle the case of Horn v. Huddle, a lawsuit brought fifteen years ago in which the Drug Enforcement Agency representative in Burma, Richard Horn, accused the CIA station chief and chief of mission of spying on him.

While this turn of events may fail to provide a legal answer to the above questions, it appears to provide a political answer.