<i>"The Name of Our Country is América" - Simon Bolivar</i> The Narco News Bulletin<br><small>Reporting on the War on Drugs and Democracy from Latin America
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DEA Agent’s Whistleblower Case Exposes the “War on Drugs” as a “War of Pretense”

Agent’s Sealed Legal Case Dismissed on National Security Grounds; Details Leaked to Narco News


By Bill Conroy
Special to The Narco News Bulletin

September 7, 2004

Former DEA agent Richard Horn has been fighting the U.S. government for the past 10 years trying to prove the CIA illegally spied on him as part of an effort to thwart his mission in the Southeast Asian country of Burma.

After being removed from his post in Burma, Horn filed litigation in federal court in Washington, D.C., in 1994 accusing top officials for the CIA and State Department in Burma of violating his Fourth Amendment rights.

After languishing in the federal court system for some 10 years, Horn’s case was dismissed in late July of this year after crucial evidence in the case was suppressed on national security grounds. Because the entire court record had been sealed by the judge, no one would have even known that Horn’s case was torpedoed, if it were not for the fact that an anonymous source leaked the judge’s ruling to Narco News.

Horn served in the early 1990s as the DEA country attaché to Burma – which ranks as one of the top opium poppy producing countries in the world.

As the highest-ranking in-country DEA representative in Burma (also known as Myanmar), Horn was charged with overseeing the agency’s mission in that country of eradicating the opium poppy, which is used to produce heroin.

From the start, Horn ran into problems with the top U.S. State Department official in Burma, Charge d’Affaires Franklin Huddle Jr., and the CIA chief of station in Burma at the time, Arthur M. Brown.

Horn’s attorney, Brian Leighton, describes what Horn was up against in Burma in a letter he sent in 1997 to U.S. Sen. Richard Shelby, R-Ala. In the letter, Leighton claims Huddle and Brown were bent on portraying the State Law and Order Restoration Council (SLORC) – the oppressive military junta ruling Burma – in the worst possible light.

However, Horn, according to the letter to Shelby, had made inroads in gaining the assistance of the SLORC in working toward opium poppy eradication in Burma. Horn’s success set in motion a series of overt and clandestine efforts on the part of Huddle and Brown to undermine DEA efforts in the region, Leighton alleges.

The reason, Leighton claimed in a recent phone interview, was that if Horn’s strategy proved successful, it would have undercut the State Department’s goal of vilifying the SLORC in the eyes of Congress and the public at large.

Sources within the intelligence community, however, tell Narco News that the CIA’s motivations in the region are likely far more complex, and that Horn simply found himself in the path of the Agency’s buzz saw.

In the end, Huddle managed to get Horn run out of Burma through the machinations of the State Department, Leighton contends, but only after Horn discovered that the CIA had planted eavesdropping equipment in his private quarters in Burma.

Horn’s attorney claims the bug was planted by Brown or one of his cronies as part of an effort to set up Horn and to undermine DEA’s mission in Burma. The eavesdropping, in the end, failed to produce any dirt that could be used against Horn, but it was a clear violation of his civil rights, according to Leighton.

Sources within DEA contend Horn’s claims against the CIA and State Department are on target, adding that the Department of Justice went as far as to claim that no U.S. citizen is protected from eavesdropping by its government when overseas.

“Horn’s whole story is true,” contends one DEA source. “They spied on his home, and the Department of Justice defended the CIA’s actions.”

Horn’s attorney, in his letter to Sen. Shelby, contends that the CIA’s net is far wider than Burma, and that the Agency regularly spies on DEA agents overseas:

… My client has learned that many DEA agents have been the subject of electronic eavesdropping by the State Department and our U.S. intelligence agencies.

… There are, no doubt, countless times when DEA’s operation plans have been foiled by “the listeners,” without DEA even knowing what happened.

What really happened in the Horn case, though, is not supposed to come out, if the government has its way. From the start, Horn’s litigation was sealed and critical evidence that could have supported his claims censored by the court.

Specifically, the evidence – two federal Inspector General (IG) reports that centered on Horn’s accusations – was determined by the court to be protected from disclosure based on something called state secrets privilege. The privilege, which was established as part of a 1953 Supreme Court ruling known as the Reynolds case, allows the government to deep-six information if it is deemed a threat to national security.

“Having determined that state secrets privilege bars disclosure of the IG Reports and certain attachments … the case cannot continue and must be dismissed,” wrote U.S. District Court Judge Royce Lamberth in his July 28, 2004, ruling in the Horn case. “As a result of the state secrets privilege, plaintiff cannot make out a … case, defendants cannot present facts necessary to their defense and the very subject matter at the heart of this case is protected from disclosure as a state secret.”

Leighton says he plans to appeal the judge’s ruling in the case.

Horn’s Charges

So what are these terrible state secrets that must be protected at all costs – even at the expense of Horn’s constitutional rights? Well, we may never know given how Horn’s case has been swept up into the world of cloak and dagger secrecy. Even in the sealed court ruling leaked to Narco News, all references to the alleged “state secrets” have been redacted.

However, it is clear that some of these state secrets are not really so secret. For example, in the sealed Lamberth ruling, among the material redacted is the name of the CIA chief of station in Burma who is one of the defendants in Horn’s lawsuit.

Horn’s attorney told Narco News that he would be subject to criminal prosecution for disclosing the name. However, the individual’s name, Arthur Brown, has been published numerous times in past media stories about the CIA’s operations in Burma and is referenced in the letter Leighton sent to Sen. Shelby. So it’s really not so secret after all, except when it comes to the peculiar rules of the U.S. Justice system.

Even though we cannot know for certain what the U.S. government deems to be “state secrets privilege” material in Horn’s case, we can assume that not everything is as it appears on the surface. An examination of Horn’s specific charges against Huddle and Brown offers additional insight as well.

For starters, Horn’s attorney claims Huddle and Brown used the resources of the State Department and CIA to sabotage a DEA plan to gain the government of Burma’s cooperation in conducting an opium yield study in the region. Leighton also claims that Huddle undermined Horn’s efforts to provide Burma’s prosecutors and police with U.S. assistance in implementing the country’s drug laws.

“In stark contrast,” Leighton points out in his letter to Shelby, “Mr. Huddle allowed the CIA to send Burmese military officers to Langley, Virginia, for training put on by the CIA.”

Horn also claims, according to assertions outlined in Judge Lamberth’s July 28 ruling in his case, that Brown compromised a DEA informant.

“… (Brown) turned over a copy of a DEA document that included the name of a confidential DEA informant to certain persons within the Burmese government without DEA permission,” the ruling states.

Leighton, in his 1997 letter to Sen. Shelby, describes the same event as follows:

DEA’s well-placed contact from the largest opium producing area in Burma provided DEA with a proposal to withdraw from opium production. The document was even signed by DEA’s informant. … If released, its contents would be highly inflammatory to the Central Government of Burma (GOB).

… Brown chose to deliver a signed copy of this document (which he surreptitiously obtained without Horn’s permission or knowledge) to a ranking figure of the Central Government of Burma knowing full well the outcome would be disastrous. It held the overall potential of causing the death of the informant, depreciating DEA’s credibility with the GOB and derailing the entire project – all at once.

… It seemed a near miracle that Brown’s plan failed. Horn and his agents still managed (after much work) to convince the Central Government of Burma not to arrest DEA’s informant and to give the crop substitution program a chance to succeed.

Huddle was finally able, through the clout of the State department, to get Horn run out of Burma in September of 1993, a little more than a year after Horn had arrived in Burma as the top DEA agent in the country. But about a month before his departure, Horn discovered that his home in Burma had been wired up by the CIA.

Leighton describes how Horn discovered the bug in his letter to Sen. Shelby:

Before leaving Burma, Horn happened to see a teletype which had quotes, ellipsis and summary of a private telephone conversation Horn had from the telephone in his living room. This cable clearly demonstrates that an electronic intercept had been planted – probably by Brown.

… As if that is not enough, Mr. Horn then learned about the technology used to conduct the intercept. … My client learned from a friend in the intelligence community (now retired) who served with him in Burma, how the intercept was likely accomplished and where the transmitter and receiver were likely located.

… Meanwhile, my client and I were threatened with prosecution if we told anyone details about this technology (designed specifically for use against other American diplomats) while at the same time, the government claimed it did not eavesdrop on my client.

In addition to the compromising of the DEA informant in Burma, the alleged illegal monitoring of Horn’s private residence is also referenced in Judge Lamberth’s sealed ruling. In fact, the ruling states that they were the subjects of the two Inspector General reports that have since been cloaked under state secrets privilege.

From Lamberth’s ruling:

(Horn’s) allegations regarding the handling of the DEA document was the subject of an Inspector General report that the court determined on Aug. 15, 2000, to be protected from disclosure by the state secrets privilege. (Horn) further argues that the purpose of the phone tap was to assist (Huddle) in obtaining information that would justify (Huddle) demanding (Horn’s) removal from Burma or otherwise justify expelling him directly. (Horn) alleges that (Huddle) sought (his) removal from Burma as retaliation for (Horn) sending reports to congressmen that conflicted with State Department reports prepared by (Huddle).

(Horn) supports his accusations of wire tapping with the contents of a cable sent by (Huddle) on or about Aug. 13, 1993, to his superiors in the State Department that contained allegedly verbatim quotations from the Aug. 12, 1993, phone conversation. The alleged phone tapping incident is the subject of a second Inspector General Report that the Court determined on Aug. 15, 2000, to be protected from disclosure by the state secrets privilege.

To understand the context of Horn’s incredible story, we have to explore the back story of Burma in the early 1990s. The SLORC is a brutal regime with a horrendous civil rights record that came into power through a military coup in 1988. That junta is now known as the State Peace and Development Council, or SPDC.

However, today, as was the case in the early 1990s, the ruling junta of Burma, because of financial and military limitations, does not control various regions of the country. This holds true in particular in the Golden Triangle region of the nation – an area that borders Laos, Thailand and China and is the source of much of the world’s opium poppy production.

The narco-trade in the Golden Triangle region is controlled by warlords who are able to field large armies that are funded with the proceeds of their illicit trade, according to sources in the intelligence community. In some cases, Burma’s military junta has struck bargains with these powerful factions, such as the United Wa State Army, which has had a ceasefire in effect with the government of Burma since 1989.

The relationship between the powerful warlords who control the lucrative narco-trade in Burma and the corrupt military junta that controls the government is very complex and layered. Sources in the intelligence community say that relationship is similar to two parasites, each sucking the blood out of the other, in a symbiotic union. As a result, drug money often finds its way into government coffers and personal accounts through agreements of convenience between corrupt government officials and the narco-traffickers.

The intelligence game in the region, then, according to sources, involves penetrating both worlds, and using information gained to manipulate the politics and forces in the region. As a result, the CIA would have assets planted inside both the government and the major trafficking organizations – with some of those assets likely working both sides of that fence. The CIA officials handling these human assets have built their careers on the information obtained from this spying game, and in some cases may have become corruptly involved in the system itself, according to sources in the intelligence community.

“If you want to cultivate assets in the drug trade to get information, then you have to let the drug trade continue, and that’s why you don’t want a noisy DEA agent getting in the way,” explains one source who does consulting work in the intelligence field. “The reason the opium economy will not stop is that the CIA does not see a value in stopping it when they want intelligence. … We don’t have a drug policy, we have a drug pretense.”

Former FBI agent Lok Lau says the Horn case is a perfect illustration of how there “is no coordination at all” between the intelligence community and other federal law enforcement agencies. Lau drew national attention last year after revealing he spied on China in the late 1980s and early 1990s for the Bureau.

Although Lau is prohibited from discussing the specifics of his spying mission due to national security concerns, his assignment did provide him with the expertise to brief CIA agents on the topics of “Chinese alien smuggling, Asian organized crime and Asian cultural issues in general,” according to government documents.

Like Horn, certain pleadings in an employment discrimination case Lau brought against the government were later stricken from the public record under the cloak of national security. Documents filed in Lau’s case show that he was successful in penetrating the Chinese diplomatic community as well as organized crime organizations that had strong links to the Chinese government.

A partially classified brief filed by the League of Untied Latin American Citizens in support of Lau’s legal claims offers a glimpse of the nature of Lau’s spying assignment:

“From a reading of the record, it is not difficult to discern that Lau was involved in espionage activities, kidnappings, trading in human slavery, illegal immigration, murder, torture, extortion, hostage-taking and any number of other criminal activities that involved crimes against humanity. Lau penetrated the Chinese Triads, the Tong, and other Chinese Organized Crime Organizations that trade in all of these things as a way of life … For six years Lau had to be on his guard and had to participate in whatever these hostile forces demanded of him.”

Lau explains that if the U.S. Government was really serious about eradicating the drug trade, “they would have done it. But they do not really want to.”

“Let’s say the DEA was successful in eradicating all drug trafficking,” Lau adds. “What would be left to prop up pro-U.S. regimes that rely on the drug trade? … The CIA can use the proceeds of the drug trade to pay for armies to support a friendly government.”

Lau also says a lot of careers in the intelligence community have been built around human assets who have been planted within the ranks of the narco-trafficking organizations. If you take down the drug trade, you take down the very assets that are helping to make careers – and at times, corrupt fortunes – within the intelligence community, Lau points out.

In fact, Lau alleges in his lawsuit against the FBI, which was dismissed in late 2003 and is currently on appeal, that on the eve of one of his overseas spying trips, he learned that one of the Bureau’s “highly placed assets had betrayed him.”

“I did not cancel my trip for it would confirm the asset’s allegation,” Lau contends in his court pleadings.

Lau says no effort was ever made by the FBI “to flush the asset out, because some (FBI) agent had made his career running that asset.”

“So they sold me out so that agent wouldn’t have to give him up,” Lau adds. “… Nothing ever happened to that informant….”

“War of Pretense”

Given that backdrop, it doesn’t take much of a leap of imagination to conclude that the intelligence community has a lot of motivation to keep a lid on the Horn case. Because the DEA agent actually wanted to do his job and take down the narco-trafficking trade in Burma, he was in fact likely threatening the opposing mission of the State Department and CIA in the region. Their mission was to maintain the status quo so that the information pipeline could continue to prop up careers and U.S. interests in the region – which had nothing to do with eradication of the opium market.

Clearly, the game as it is played is reprehensible in the eyes of most decent people, but it’s an old game that is not likely to end without a major reshuffling of the status quo. However, when that game starts to reach into this country’s courts and subverts the ultimate U.S. interest, the Constitution, it may be time to start drawing some lines.

The use of the state secrets privilege in the Horn case is the “government’s nuclear option when it comes to litigation,” explains Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists. “By claiming state security issues, the government can effectively shut down a lawsuit.

“It used to be a fairly rare procedure, but its use is on the rise in recent years, and based on perception at least, there is a question about the government’s good faith in citing the privilege.”

Mark Zaid, a Washington, D.C.-based attorney who has represented a number of high-profile government whistleblowers, says often the use of state secrets privilege “is an abuse, a way for the government to cover up wrongdoing or incompetence, and the judiciary goes along with it because they are intimidated.”

Zaid is the attorney representing former FBI translator Sibel Edmonds, who claims she was fired from the FBI for blowing the whistle on serious security and management dysfunction within the FBI’s translator program. Edmonds filed a lawsuit against the U.S. Department of Justice in 2002 claiming the government violated her civil rights.

However, this past July, a judge threw her case out of court after ruling evidence Edmonds needed to prove her claims was protected by state secrets privilege. As in the Horn and Lau cases, Edmonds was prevented from exposing alleged government corruption and mismanagement because of the national security trump card. Edmonds case is currently on appeal.

Zaid points out that the Horn case has particularly serious implications for open government, because not only was state secrets privilege invoked, but the case itself was sealed, which meant no one would even know that national security had been used to torpedo the case if the judge’s order had not been leaked to Narco News.

“The CIA will do what it needs to do to suit its interests,” Zaid says. “If that means taking steps against another agency employee, they will do it.

“… But there is a double tragedy in the use of the state secrets privilege (in the Horn case) in that because the case is sealed, no one would even know the government invoked the privilege. … The ridiculous thing is that (Horn’s) case is still under seal. There is very little classified information involved in the case (and what is there has already been redacted from the record).

“So why is this case being covered up by the government?” Zaid asks.

That is a question that goes to the heart of our Constitution, and whether the document still has any meaning. Ironically, Horn could not be reached for comment on this story because, according to sources, he fears the government will retaliate against him if he exercises his First Amendment right to discuss his case.

Phone calls to the CIA and State Department were never returned.

Their silence, like the pall that the national security trump card lays over the truth, only contributes to the “war of pretense” being waged against the civil rights of people around the globe.

One DEA source summed up the danger of the government’s continued expansion of that pretense as follows:

Illegal eavesdropping, the centerpiece of Horn’s civil case, is also a criminal offense. An analogy of the government’s position is this: If a CIA chief of station had stabbed Horn with a butcher knife in the American Embassy, he could not be prosecuted because the very existence, location and name of chiefs of station are considered classified and cannot be disclosed. Moreover, the chief of station would not be able to defend himself without using classified information. Therefore, the state secrets privilege kicks in and the case disappears. This theoretical “stretch” of the privilege is not unlike what was done in Horn’s civil action.

In practice, both cases could move forward, but only if fair treatment is accorded by the court.

It is apparent that the state secrets privilege has expanded and evolved in such a way that it effectively immunizes persons and agencies of crimes and other misconduct. It no longer just protects troop movements, satellite imagery, etc. It now seems to include everything the intelligence community does. The intelligence agencies are no longer held accountable for wrongdoing. They have the all-inclusive trump card.

… In the Horn case, the state secrets privilege has been used to immunize people and agencies from wrongdoing – a far cry from what the United States Constitution intended.

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The Narco News Bulletin: Reporting on the Drug War and Democracy from Latin America