'Bulldog' lawyer gets break in 15-year court battle with CIA

McClatchy NewspapersAugust 3, 2009 

WASHINGTON — In winning a key court victory last month, Clovis, Calif., lawyer Brian Leighton advanced his marathon legal battle for a longtime friend — and attracted national attention for beating the CIA in court.

In an eye-opening order, a federal judge concluded CIA and Justice Department officials repeatedly had misled him in defending against a lawsuit Leighton filed 15 years ago.

The judge's order made public hundreds of previously secret documents.

It revealed government attorneys face potential sanctions for misconduct, and it rewarded Leighton's determination to challenge administrations that protect themselves from lawsuits by invoking national security.

"I'm a bulldog," Leighton said. "I don't give up."

Leighton and former Fresno-based narcotics agent Richard Horn contend State Department and CIA officials illegally eavesdropped on Horn while he was the Drug Enforcement Administration's top officer in Burma.

Leighton, too, is a former Justice Department employee. He was a federal prosecutor in the San Joaquin Valley for six years, working alongside Horn in the 1980s.

Now, both of these Justice Department alumni share deep scorn for how their former colleagues have handled the case, first filed in August 1994.

The Justice Department first succeeded in placing the case and its voluminous filings under seal, which shut out the public.

Then the department convinced a trial judge to throw out the entire suit, on the grounds that it couldn't be pursued without endangering state secrets.

An appellate court later reversed that decision.

"The common component to all these strategies is to delay, delay, delay," Horn said in an e-mail interview.

"In their view there's always a chance that . . . Brian Leighton or I will stumble out in front of a Mack truck."

Horn, who says his adversaries in the government forced him out of Burma, eventually felt obliged to retire from the DEA.

Leighton, a 59-year-old Fresno State graduate, has faced challenges of his own. He said he has been threatened with prosecution for revealing government secrets. He's been told his secretary can't type legal briefs because she lacks a security clearance.

Even a federal judge now says the government has engaged in "misconduct" and "misrepresentations" in fighting Leighton.

"The only thing I can see you've done is try to stall at every turn," a furious U.S. District Judge Royce Lamberth told Justice Department and CIA attorneys at a May 19 hearing, a newly public transcript shows. "You handcuffed the court with this nonsense."

A Justice Department spokesman declined to comment, saying that "this is an ongoing matter." A CIA spokesman has said only that the agency takes its legal obligations seriously.

At first blush, Leighton might seem an unlikely antagonist in a Washington-centered case.

After getting a law degree from Humphreys College, a small law school based in Stockton, he spent six years as a prosecutor in Fresno with the U.S. Attorney's Office.

He's now a solo practitioner with an office in Clovis and a roster of farm clients.

Most notably, the self-styled libertarian has represented San Joaquin Valley farmers who object to paying mandatory fees to promote the table grape, raisin, cherry and cut-flower industries, among others.

"He's very aggressive, let's put it that way," said Manuel Cunha, president of the Fresno-based Nisei Farmers League and a supporter of the practice, called agricultural marketing orders.

"His tone and mannerism are not those of a Perry Mason."

Horn was a Fresno-based DEA agent when Leighton ran the region's organized crime drug task force.

They handled what Leighton termed "a lot of huge drug cases," serving warrants in Miami and Los Angeles.

They stayed in touch when Horn eventually became the DEA's chief agent in Burma.

But Horn ran afoul of State Department officials, lawsuit documents show. He says those officials disagreed with his assessment of how cooperative Burmese officials were. And they used illegal eavesdropping to support their argument that he could undermine the drug effort, Horn maintains.

In a legal filing, he claimed the other government officials wanted to "retaliate" against him because his "whistle-blowing would harm the dishonest" agenda pursued by the State Department and CIA.

Horn ultimately lost his Burma job in September 1993.

He already had been in touch with Leighton because of their prior work relationship, even calling him from Rangoon on a phone he later came to believe was wiretapped.

Leighton, who is being aided by Washington-based lawyer James Moody, said he has attended some hearings in person in the D.C. court, and some by phone.

As the case unfolded, Leighton said, he came to dislike the government's excessive secrecy and "the arrogance of the Beltway." Leighton said he thinks "the spooks were just trying to cover up their mistakes."

Horn's complaints about eavesdropping by Franklin Huddle of the State Department and Arthur Brown of the CIA prompted two inspector general reports. The government has sought to keep the reports secret for many years, crimping Leighton's courtroom arguments.

"The disclosure of covert CIA activities on foreign soil could embarrass the host government, creating diplomatic tensions between that country and the United States," Justice Department attorneys argued in a February 2000 court filing.

Former CIA Director George Tenet added that disclosure would "cause serious damage to the national security."

Tenet's complete explanation was itself kept secret — even from Leighton. Horn's attorneys, Tenet explained, "lack the requisite need for access."

Such secrecy has repeatedly hindered Leighton.

For instance, he cannot retain in his Clovis office certain DEA documents. Instead, he must periodically visit a "secure room" at the DEA's Fresno office. Even with Lamberth's ruling last week unsealing the case, some of the secrecy will remain.

The previously undisclosed record shows how Lamberth has lost all patience with CIA and Justice Department attorneys, several of whom he now says misled him about the covert status of a CIA officer.

Some government attorneys, and potentially Tenet himself, face potential sanctions.

Now, with the case at least partially public, Leighton is preparing for the next round of legal briefings.

A reasonable settlement at this point, he said, could reach millions of dollars.

Horn himself is reticent about his present circumstances, keeping to himself the location of his current residence.

"I sit on the porch with a cheap cigar and a vodka tonic, wave at passing cars and wait for the next trip to the (court)," Horn said in an e-mail.

"I strive to live a quiet and anonymous life."

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