How many privileged secrets?

The formerly "rarely invoked" State Secrets Privilege has effectively gagged another whistleblower. This time, Drug Enforcement Agency Whistleblower Richard Horn.

Horn's 10-year case, alleging that senior CIA and State Department officials thwarted his DEA mission to eradicate Burmese opium production and illegally spied on him, was dismissed in July because a court found for the government that his evidence could threaten national security. The complete court record was sealed by the judge, and the ruling is known only because it was leaked by an anonymous source to The Narco News Bulletin.
From Bill Conroy's report:

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.

Shades of Sibel Edmonds. (And the CIA foiling a mission to curb opium production should call to mind what she said about the intersection of drugs, guns and oil.) When on October 18, 2002 the Department of Justice gave notice it was muzzling the former FBI translator, it stated that State Secrets Privilege "allows the Executive Branch to safeguard vital information regarding the nation’s security or diplomatic relations... It is an absolute privilege that renders the information unavailable in litigation."

In other words, the stronger the case against the government, the less chance it has of succeeding, because it can play the "national security" card on a deferential judiciary and see the evidence for the opposing argument safely locked away, even out of sight of the court itself.

Perversely, and perhaps fittingly, the concept of "State Secrets Privilege" was enshrined in law through a 1953 Supreme Court decision founded upon unconscionable fraud of the US military. Compensation for widows whose husbands had died in the peacetime crash of a B-29 bomber unfit to fly was overturned when the Air Force refused to produce the accident report because to do so would also reveal state secrets which could imperil national security. The judgement of the court represented an act of faith in the government: when it speaks on national security, it must be taken at its word.

When survivors and heirs sought to overturn the verdict earlier this year the government moved to dismiss the case, and argued that even if its witnesses had perjured themselves in the original case, that would not legally constitute a "fraud upon the court."

The Patriot Act isn't such a novel beast for Witchfinder General John Ashcroft. Great discretion for the Executive Branch had already been established through such creatures of the National Security State as "State Secret Privilege." It is, rather, the uncommon extremis of the Bush years that lends clarity to matters of simple justice. And if whistleblowers like Richard Horn and Sibel Edmonds are to find justice, it likely won't be in an American court of law.