Judge rules that he, too, can grant access to U.S. secrets

McClatchy NewspapersAugust 27, 2009 

WASHINGTON — In a highly unusual legal step, a federal judge has ordered the government to grant an attorney a security clearance so he can represent a disgruntled former narcotics officer in a lawsuit against a former CIA officer.

The judge's order significantly boosts attorney Brian Leighton's long legal battle on behalf of Richard Horn, a Drug Enforcement Administration veteran whose service ranged from California's San Joaquin Valley to the Burmese jungles. More broadly, the new judicial order challenges the president's customary monopoly in controlling access to secrets.

"The deference generally granted the executive branch in matters of classification and national security must yield when the executive attempts to exert control over the courtroom," U.S. District Judge Royce Lamberth wrote in an order issued late Wednesday.

Already impatient with the Justice Department's handling of a case first filed in 1994, Lamberth gave officials 10 days to grant Leighton and other attorneys the security clearances needed to see "classified and/or privileged information." In doing so, Lamberth underscored the key question involved.

"Does the executive branch have the exclusive right to determine whether counsel . . . have a need-to-know classified information within the context of litigation, or can that be a judicial determination?" Lamberth asked rhetorically.

Lamberth added that prior cases didn't "directly answer" the question, which he called one of "a number of vexing legal and practical difficulties" raised in the course of the lawsuit brought by Leighton and Horn.

"It is fabulous for many reasons, not the least of which is the judge doesn't believe anything the government is saying," Leighton said Thursday of the new ruling.

Justice Department spokeswoman Beverley Lumpkin said Thursday that officials were still reviewing the latest decision and would otherwise have no comment.

Now based in Clovis, Calif., Leighton is a former federal prosecutor who worked with Horn when the DEA agent was based in California. Horn went on to become the top U.S. narcotics officer in Burma in the early 1990s.

Horn contends CIA and State Department officials illegally eavesdropped on him and eventually forced him out of Burma because of policy disagreements. His subsequent lawsuit was sealed at the Justice Department's request for many years, until Lamberth ordered many documents to be made public in July.

In his July ruling, Lamberth denounced certain CIA and Justice Department officials for having "handcuffed the court" with delay tactics and inaccurate statements. His latest ruling similarly chastises Justice Department attorneys for "continued obstinance" and "diminished credibility."

"The government should save its theatrics for the court of appeals," Lamberth added tartly.

Leighton formerly held a security clearance, but it lapsed. The Justice Department contended he no longer had a "need to know" the classified information involved in the case.

"Immense constitutional implications would arise from the entry of an order requiring the government to grant counsel access to classified information in the absence of a government determination that counsel have the requisite 'need-to-know,'" Justice Department attorney Paul B. Freeborne argued in a July 30 brief.

Freeborne added that because the executive branch "is exclusively responsible for the protection and control of national security information," a judge cannot order that someone be granted access to such classified information.

The Justice Department has made clear in its legal filings that it might appeal any decision that runs counter to its arguments about the protection of classified information.

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