RICHARD A. HORN, 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

FILED WITH 

Plaintiff, 

v. 

MADELEINE ALBRIGHT, 

et al., 

Civ. No. 96-2120 (RCL) 

~v. No. 94-1756 

(Consolidated) 

UNDER SEAL 

Defendants. FILED 

AUG 1 5 2000 

MEMORANDUM AND ORDER AANCY MAYER WHITTINGTON, CLERK 

U.i. OIS'm/CT COURT 

This matter comes before the court on the United States' 

Motion for Reconsideration of the court's February 1, 2000 order 

requiring the United States to disclose to the plaintiff certain 

documents the government contends are covered by the state 

secrets privilege and other statutory privileges. 1 In tandem 

with this motion, the United States has filed an Assertion of 

State Secrets and Statutory Privileges concerning the documents 

subject to the court's February 1, 2000 Order. Upon consideration 

of the motion, the opposition thereto, the United States' 

assertion of privilege, in camera review of the supporting 

IBecause the court concludes that the United States' 

assertion of the state secrets privilege is appropriate and 

therefore shields these materials from disclosure, the court need 

not address the alternative statutory privilege claims asserted 

by the United States. 
declarations (both classified and unclassified), plaintiff's 

response, the applicable law, and for the reasons set forth 

below, the court hereby GRANTS the United States' Motion for 

Reconsideration and VACATES that portion of the February 1, 2000 

Order requiring the United States to disclose to the plaintiff 

those portions of the Inspector General Reports ("IG Reports") 

and their attachments, including the State Department cable, 

which are covered by the state secrets privilege. In addition, 

the court hereby SUSTAINS the United States' assertion of the 

state secrets privilege over these materials. 

I. BACKGROUND 

The underlying allegations in these two related cases are as 

follows: Plaintiff Richard Horn, a Drug Enforcement 

Administration ("DEAH) agent, served as DEA's Country Attache in 

a foreign country ("Country") from 1992 to 1993. In 1993, he was 

removed from that post by the Chief of Mission at the American 

Embassy. Horn subsequently filed a Bivens2 action against that 

Embassy official ("Bivens Defendant IH) and another senior 

official ("Defendant II") alleged by plaintiff to have been a 

Central Intelligen"ce Agency ("CIA") employee in that same 

2Bivens v. Six Unknown Named Agents of the Fed. Bureau of 

Narcotics, 403 U.S. 388 (1971). 

2 
Country. Claiming, inter alia, a violation of his constitutional 

rights under the Fourth Amendment, Horn alleges that on or about 

August 12, 1993, prior to his departure, Defendant II or someone 

under his authority "tapped" plaintiff's late-night telephone 

conversation in plaintiff's government leased quarters, and 

disclosed the content or a recording of the conversation to 

Defendant I. Plaintiff further alleges that the contents of the 

allegedly intercepted conversation was partially transmitted by 

Defendant I to his agency's headquarters in Washington, D.C. 

Horn maintains that his removal from his post in ,Country was 

, , 

retaliatory and resulted from his philosophical clashes with the 

Chief of Mission. Specifically, Horn contends that his removal 

was prompted because Horn had accused Defendant II of passing to 

Country's government a sensitive DEA document without consulting 

Horn or another DEA agent. In addition to his constitutional 

tort claims against Defendants I and II, Horn has subsequently 

filed a class action complaint, alleging that the State 

Department, the CIA and [another government agency] have engaged 

in an unlawful pattern and practice of intercepting the telephone 

conversations of DEA agents in violation of the Fourth Amendment, 

as well as the Foreign Intelligence Surveillance Act, 50 u.s.c. § 

3 
1801 et seq., and Title III of the Omnibus Crime Control and Safe 

Streets Act, 18 U.S.C. § 2510 et seq.) 

The present dispute centers on an order issued by this court 

on February 1, 2000, in which the court ordered the government to 

disclose certain documents to the plaintiff. Specifically, the 

court ordered the defendants to "produce the [IG Reports] and 

their attachments and make any claims of privilege with respect 

to use of such reports. N4 Order of February 1, 2000. The United 

States asks the court to reconsider its order in light of the 

United States' assertion of state secrets and statutory 

privileges over portions of the IG Reports and their 

attachments. s To that end, the United States has filed a formal 

30n February 10, 1997, the court denied the Bivens 

Defendants' Motion to Dismiss, concluding that defendants were 

not entitled to qualified immunity and that plaintiff's 

complaint, while failing to state a claim under the Foreign 

Intelligence Surveillance Act,adequately stated a claim under the 

Fourth Amendment for purposes of Fed. R. Civ. P. 12(b) (6). 

Currently pending before the court is the Government Defendants' 

Motion to Dismiss Plaintiff's Second Amended Class Action 

Complaint, a matter which the court shall address in a separate 

opinion issued today. 

4There are, in fact, two so-called IG Reports at issue here. 

One such report is a joint report issued by the State Department 

IG and the CIA IG. The other is a report issued by the CIA IG 

only. Nonetheless, because the court finds that the state 

secrets privilege applies with equal force to both reports, in 

this opinion, the court shall refer to these reports simply as 

"the IG Reports. N 

SDefendants represent that they are not claiming the state 

secrets privilege with respect to certain of the attachments to 

the joint IG Report and that these unclassified materials have 

been provided to plaintiff. See Defendants' Memorandum in Support 

4 
assertion of state secrets and statutory privileges, which is 

supported by detailed classified and unclassified declarations 

provided by the Director of Central Intelligence ("DCI U ), among 

others. 

Essentially, plaintiff argues that the contested materials 

must be disclosed to him because plaintiff and his counsel have 

been granted Top Secret security clearances by the Department of 

Justice Security Officer. Simply put, plaintiff contends that 

his security clearance authorizes his access to these materials 

and thereby overrides the United States' state secrets privilege 

claim. Additionally, plaintiff maintains that DCI George Tenet's 

public declaration fails to explain how that the matter was 

"personally considered" by him, or to specify how national 

security will be impaired by disclosure. 

Resolution of the present motion, therefore, turns upon 

whether the United States has properly asserted the state secrets 

privilege, and whether the fact that plaintiff and his counsel 

have Top Secret security clearances alters the court's analysis 

of the state secrets privilege claim. As discussed below, the 

court finds that the United States has adequately supported its 

assertion of the state secrets privilege over the withheld 

of the United States' Assertion of State Secrets and Statutory 

Privileges, at 3 n.2 (D.D.C. Feb. 8, 2000) (stating that the 

government would produce to plaintiff attachments 3, 5, 10-11, 

13-17, 29, 36-37, 40-46, and 52-53 of the Joint State-CIA IG 

Report, with privileged portions redacted. 

5 
portions of the IG Reports and their attachments, including the 

State Department cable. In addition, the court finds that the 

fact that plaintiff and his counsel have been afforded a security 

clearance by the Court Security Officer at the Department of 

Justice does not afford plaintiff the requisite "need to know" 

for purposes of obtaining access to state secrets information. 

Accordingly, in light of these findings, the United States shall 

not be required to produce the contested materials to the 

plaintiff and that portion of the February 1, 2000 order that 

requires them to do so shall be vacated. 

II. DISCUSSION 

A. The States Secrets Privilege 

It is well-established that the state secrets privilege 

protects against the disclosure of privileged information, and 

not simply its use at trial. See United States v. Reynolds, 345 

u.s. 1, 6, 10-11 (1953) (claim of state secrets privilege was 

"sufficient showing of privilege to cut off further demand for 

the document") . Indeed, the protection afforded by the state 

secrets privilege is absolute. Reynolds, 345 u.S. at 10-11 

(stating that "even the most compelling necessity cannot overcome 

the claim of privilege if the court is ultimately satisfied that 

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military secrets are at stake"); see also Moliero v. FBI, 749 

F.2d 815, 821 (D.C. Cir. 1984) (determining that "[n]o competing 

public or private interest can be advanced to compel disclosure 

of information found to be protected by a claim of [state 

secrets] privilege") (quoting Ellsberg v. Mitchell, 709 F.2d 51, 

57 (D.C. Cir. 1983)); Ellsberg v. Mitchell, 709 F.2d 51, 56 (D.C. 

Cir. 1983) ("It is now well-esiablished that the United states, 

by invoking its states secrets privilege, may block discovery in 

a lawsuit of any information that, if disclosed, would adversely 

affect national security."); Halkin v. Helms, 690 F.2d 977, 990 

(D. C. Cir. 1982) (stating that "[ Reynolds] establishes that 

secrets of state-matters the revelation of which reasonably could 

be seen as a threat to the military or diplomatic interests of 

the nation are absolutely privileged from disclosure in the 

courts. ."). Moreover, the state secrets privilege 

forecloses disclosure to litigants even where counselor their 

clients have security clearances or where courts have issued 

protective orders to protect classified information. Northrop 

Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 401-02 (D.C. Cir. 

1984) (finding that the district court properly sustained the 

assertion of state secrets privilege, regardless of the fact that 

the party seeking the materials was entrusted with classified 

information in the past). 

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The state secrets privilege may be invoked to protect 

matters, which, if disclosed could cause harm to the nation's 

defense capabilities. See Reynolds, 345 U.S. at 6-7, 10; Bareford 

v. General Dynamics Corp., 97) F.2d 1138 (5th Cir. 1992) (state 

secrets privilege sustained in manufacturing and design defect 

against military_weapon manufacturer); Zuckerbraun v. General 

Dynamics Corp., 935 F.2d 544, 546-47 (2d Cir. 1991) (wrongful 

death suit dismissed after sustaining claim of state secrets 

privilege); M9Donnell Douglas Corp. v. United States, 37 Fed. Cl. 

270 (1996) (state secrets privilege forecloses contractor from 

discovery of information on "Stealth U technology); N.S.N. Int'l 

Indus. v. E.I. duPont de Nemours & Co., 140 F.R.D. 275, 279 

(S.D.N.Y. 1991) (foreign corporation barred from discovery of 

classified documents on Defense Department contract). In other 

instances, the state secrets privilege has been raised to shield 

materials that would disclose intelligence-gathering methods or 

capabilities, see, e.g., Halkin v~ Helms, 690 F.2d 977, 993 (D.C. 

Cir. 1982); Black v. United States, 62 F.3d 1115 (8th Cir. 1995); 

Clift v. United States, 808 F. Supp. 101 (D. Conn. 1991), or 

where disclosure could unsettle diplomatic relations with a 

foreign government. Halkin, 690 F.2d at 990 n. 53; Attorney 

General v. The Irish People, Inc., 684 F.2d 928 (D.C. Cir. 1983). 

To establish a proper state secrets privilege claim, the 

government must assert "a formal claim of privilege, lodged by 

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the head of the department who has control over the matter, after 

actual personal consideration by that officer." Reynolds, 345 

U.S. at 7-8. In assessing a claim of state secrets privilege, 

the scope of review is narrow and deferential. Northrop Corp., 

751 F.2d at 402 (noting that courts must defer to executive 

assertions of military or diplomatic secrets) (quoting Halkin I, 

598 F.2d at 9 and United States v. Nixon, 418 U.S. 683 (1974}); 

see also CIA v. Sims, 471 U.S. 159, 179-80 (1974) (explaining 

that deference accorded executive branch in the area of national 

security is warranted in light of executive's greater familiarity 

with interests and risks involved). Thus, if a court is satisfied 

that a reasonable danger exists that harm to national security 

will result from disclosure, the assertion of state secrets 

privilege must be sustained. Reynolds, 345 U.S. at 10-11; 

Ellsberg, 709 F.2d at 58. Indeed, even though a court should 

examine a privilege claim more closely where the information 

sought appears critical to a party's case, once the government 

makes a showing of reasonable danger to national security, the 

court's inquiry ceases. Id. at 11 (stating that "[w)here there 

is a strong showing of necessity, the claim of privilege should 

not be lightly accepted, but even the most compelling necessity 

cannot overcome the claim of privilege if the court is ultimately 

satisfied that military secrets are at stake"). "Reasonable 

danger" to national security does not mean that the threat is 

9 
inevitable nor that the disclosure of privileged information will 

be public. Northrop Corp., 751 F.2d at 402. Rather, the 

government need only demonstrate that national security interests 

might be harmed. Reynolds, 345 u.s. at 10. 

Applying the standards set forth above, the court finds that 

the government has met the procedural and substantive 

requirements for invoking the state secrets privilege. As a 

preliminary matter, the court notes that the heads of the 

agencies that control the intelligence information have formally 

asserted the state secrets privilege. See Declaration of George 

J. Tenet, Director of Central Intelligence (Unclassified) ~~ 1-4 

("Tenet Decl."); Declaration of John J. Hamre, Deputy Secretary 

of Defense, ~~ 1-3, 6 ("Hamre Decl.") (acting, through delegated 

authority, fer the Secretary of Defense while he was out of the 

country). Moreover, contrary to plaintiff's assertions, the 

court finds that the declarations-both classified and 

unclassified-adequately demonstrate that the agency heads have 

p~rsonally considered the grounds for the ass~rtion of privilege. 

See Tenet Decl. (Unclassified) ~~ 7, 23; (Classified) ~ 68; Hamre 

Decl. ~ 5; see also Declaration of Michael V. Hayden, Director of 

the National Security Agency ("NSA") (Classified) ~10. 

In addition to satisfying the formal requirements of the 

privilege, the court concludes, after its in camera review of the 

classified declarations, as well as its consideration of the 

10 
unclassified declarations, that the United States has 

sufficiently demonstrated that the disclosure of the information 

contained in the IG Reports and their attachments could 

reasonably be expected to cause serious damage to the national 

security of the Uni~ed States. 6 To begin with, DCI Tenet 

explains that disclosure of the IG reports and their attachments 

would threaten to reveal the identities of certain covert CIA 

officers. Tenet Decl. rt 9, 13. Not only could disclosure of ~he 

identities of these individuals in the clandestine service of the 

CIA endanger their own safety, but also that of their families, 

other government officials or foreign nationals with whom they 

associate. Id. ~ 14. Moreover, and perhaps most importantly for 

purposes of this privilege claim, disclosure of the covert agents 

identified in these materials could threaten the security of 

current U.S. intelligence operations 

Id.; see also Tenet Decl. (Classified) at 8 n.6; Hayden Decl. ! 

15. For example, DCI Tenet details how these materials contain 

6rn light of their extremely sensitive nature, and in the 

interest of drafting an opinion that may someday appear on the 

public record, the court's discussion of the information 

contained in the classified declarations must be kept to a very 

generalized level. 

11 
nd thereby harm U.S. national 

security. Tenet Decl. ~ 15. Furthermore, these materials provide 

information as to ~he organizational structure and functions of 

~ 11. Disclosure of the extent of 

ould 

reasonably harm na~ional security by alJ.owing a hostile 

intellige~ce service to obtain a more complete picture of how our 

i~telligence-gathering agencies, systems and procedures operate. 

Such information could then be used to thwart U.S. intelligence 

rd.; ~ 11. 

The IG Reports and attachments also identify intelligencegathering sources, methods and capabilities, 

Id. ~~ 12; 19-20. F.s 

Tenet explairs, not only could disclosure of ~nformation about 

the strengths of our intelligence sources and methods reasonably 

harm national security, but exposures of areas of weakness could 

ce equally, or perhaps more devastating to U.S. national security 

interests. Id. ~~ 18-21. The court finds that the explanations 

proviaed in the unclassified and the classified declarations in 

particular more than adequately establish a basis for concluding 

that the state secrets privilege applies to the IG Reports and 

chair attachments.' 

7The court is ungersuaded by plaintiff's argument that the 

de!endants' disclosure of the IG Reports to the Bivens defendants 

ccnstitutes a waiver of the state secrets privilege. To the 

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B. Plaintiff's Security Clearance 

Finally, plaintiff advances that, notwithstanding the United 

States' invocation of the state secrets privilege, the government 

must nevertheless disclose the IG reports and attachments to the 

plaintiff and hi~ counsel because they have been granted 

security clearances by the Department of Justice Security 

Officer. The United States contends that the fact that plaintiff 

and counsel currently possess security clearances is of no 

consequence to the issue of privilege and thus does not alter the 

inviolability of a properly supported claim of state secrets 

privilege. 

The court agrees with the government defendants' contention 

that a security clearance does not, by itself, bestow on its 

holder the requisite "need-to-know" for purposes of obtaining 

access to classified state secrets information. Rather, once the 

contrary, the defendants' disclosure of these reports to the 

individuals whose actions were the subject of such reports does 

not affect the privilege claim, where, as here, the agency 

determined that these government employees had a need-to-know the 

information to carry out a lawful governmental function. 

Likewise, the court disagrees with plaintiff's assertions that 

the Classified Information Procedures Act applies to this civil 

case, as, by its terms, the statute applies to criminal cases. 

See, e.g., 18 U.S.C. App. 3 § 3 (providing that "[u]pon motion of 

the United States, the court shall issue an order to protect 

against the disclosure of any classified information disclosed by 

the United States to any defendant in any criminal case in a 

district court of the United States") (emphasis added). 

13 
court determines that the information is privileged, it is 

privileged from disclosure notwithstanding any finding of 

trustworthiness on the part of the party seeking the information. 

See, e.g., Northrop Corp., 751 F.2d at 401-02; Ellsberg, 709 F.2d 

at 61; Colby v. Halperin, 656 F.2d 70, 72 (4th Cir. 1981) 

("(d)isclosure to one more person, particularly one found by the 

CIA to be a person of discretion and reliability, may seem of no 

great moment, but information may be compromised inadvertently as 

well as deliberately"); Halkin I, 598 F.2d at 7; Monarch 

Assurance PLC v. United States, 36 Fed. Cl. 324, 328 (Fed. Cl 

1996); Foster v. United States, 12 Cl. Ct. 492, 494 (Cl. Ct. 

1987); Korkala v. CIA, No. 87-1035, 1990 u.s. Dist. LEXIS 2947, 

at *9 (D. D.C. Mar. 15, 1990); AT&T v. United States, 4 Cl. Ct. 

157, 159-61 (1983). 

Moreover, access to classified information requires two 

determinations--a security clearance and a need-to-know. As this 

court has previously noted, access to classified information is 

governed by Executive Order 12958, see Order of June 10, 1998, 

which provides that "[a] person may have access to classified 

information if: (1) a favorable determination for eligibility for 

access has been made by an agency head or the agency head's 

designee [i.e., a security clearance]; (2) the person has signed 

an approved nondisclosure agreement; and (3) the person has a 

need-to-know the information." Id. (citing Executive Order 12958, 

14 
§ 4.2). Section 4.2 of Executive Order 12958 further defines 

"need-to-know" as "a determination made by an authorized holder 

of classified information that a prospective recipient requires 

access to specific classified information in order to perform or 

assist in a lawful and authorized governmental function." Exec. 

Order 12958, § 4.2(c); see also 28 C.F.R. § 17.41 (stating that 

"[n]o person may be given access to classified information or 

material originated by, in the custody, or under the control of 

the Department, unless the person-(l) has been determined to be 

eligible for access in accordance with sections 3.1-3.3 of 

Executive Order 12968; 92) has a demonstrated need-to-know; and 

(3) has signed an approved nondisclosure agreement."). By its 

terms, Executive Order 12958 provides that classified information 

remains under the control of the originating agency and that 

before disclosing classified information, an agency, such as the 

Justice Department, must obtain authorization from the agency 

with original classification authority over the information. Id. 

§ 4.2(b); see also 28 C.F.R. § 17.46(b). 

Here, plaintiff and his counsel, in obtaining security 

clearances from the Justice Department Security Officer, have 

satisfied only the first step in the requirements for access to 

classified information under Executive Order 12958. In short, 

upon receiving their clearance, they became eligible for access 

to classified information; they did not automatically obtain 

15 
access. Here, notwithstanding the fact that plaintiff and his 

counsel have obtained a "favorable eligibility determination," 

the CIA, the authorized holder of the information, has determined 

that they do not have the requisite need-to-know for access to 

these state secrets materials under its control. Tenet Decl. ~ 31 

(Unclassified); Tenet Decl. ~! 7, 65 (Classified); see also 

Hayden Decl. ~ 4 (Classified). While plaintiff's counsel insists 

that his security clearance is "meaningless" if it does not grant 

access to these particular state secrets materials, the court 

disagrees. Instead, the court recognizes that the various 

procedures set forth under Executive Order 12958 are designed to 

safeguard sensitive information, such as that implicated by 

plaintiff's allegations. See Colby, 656 F.2d at 72. To that end, 

determinations of access must be placed in the hands of those who 

possess the fullest information about the risks to national 

security that would be implicated by disclosure, which in this 

instance is the Director of Central Intelligence. CIA v. Sims, 

471 u.s. at 179-80. Courts, which may only consider the discrete 

facts presented by the controversies placed before them, properly 

defer to the determinations made by the Executive Branch in the 

complex and sensitive area of national security. See In re United 

States, 872 F.2d 472, 475 (D.C. Cir. 1989) ("It requires little 

reflection to understand that the business of foreign 

intelligence gathering in this age of computer technology is more 

16 
akin to the construction of a mosaic than it is to the management 

of a cloak and dagger affair. Thousands of bits and pieces of 

seemingly innocuous information can be analyzed and fitted into 

place to reveal with startling clarity how the unseen whole must" 

operate. This court applies an appropriately narrow standard of 

review, and will uphold a claim of privilege for information that 

standing alone may seem harmless, but that together with other 

information poses a reasonable danger of divulging too much to a 

'sophisticated intelligence analyst.''') ( citing Halkin I, 598 F. 2d 

at 8,10). 

III. CONCLUSION 

For the reasons set forth above, the court finds that the 

state secrets privilege has been properly asserted to bar 

disclosure of the IG Reports and certain of their attachments, 

including portions of the State Department cable. Accordingly, 

it is hereby 

ORDERED that Defendants' Motion for Reconsideration is 

GRANTED; and it is further 

ORDERED that the February 1, 2000 Order is VACATED to the 

extent that it required the disclosure of documents, or portions 

of documents, claimed and determined to be privileged under the 

state secrets privilege; and it is further 

17 
ORDERED that the United States Assertion of State Secrets 

and Statutory Privileges is SUSTAINED. 

SO ORDERED. 

DATE: 

United States District Judge 

18