Thursday, January 8, 2004
Ruling That Alleged Spies Can Sue CIA for Pay Allowed to Stand
Six Ninth Circuit Judges Dissent From Denial of En Banc Rehearing
By KENNETH OFGANG, Staff Writer/Appellate Courts
The Ninth U.S. Circuit Court of Appeals yesterday denied en banc rehearing of its May 29 ruling reinstating a suit by a Seattle-area couple who allege that they spied for the United States in their then-Communist homeland during the Cold War.
In a brief order, the court said that a majority of its unrecused active judges had voted to deny the government’s petition for rehearing by the enlarged panel. The court does not announce vote counts, but six judges signed a dissenting opinion arguing that the ruling, by a divided panel, threatens the country’s ability to conduct espionage.
The plaintiffs, identified only as John Doe and Jane Doe, allege that John Doe was a high-ranking diplomat for an unnamed “Eastern bloc” country formerly considered a United States adversary. When they approached U.S. embassy personnel seeking assistance in defecting, they claim, they were persuaded to spy instead.
In return, they allege, they were promised lifetime security, including a $27,000 annual stipend and housing and other benefits. After the end of the Cold War, they said in their complaint, they were allowed to immigrate to the United States under the provisions of an act allowing the CIA to bring in up to 100 persons per year whose admission “is in the interest of national security or essential to the furtherance of the national intelligence mission.”
The CIA kept its part of the bargain until Doe found work in Washington state, the complaint alleges, and promised to resume his stipend if he ever lost his job. But when he found himself unemployed in 1997, after 10 years, the agency allegedly refused to assist.
The CIA said it could neither admit or deny the allegations of the complaint, but asked that the action be dismissed either for lack of jurisdiction—the agency claimed the action was for breach of contract, and thus should be heard in the Court of Federal Claims—or under an 1875 Supreme Court decision holding that the government has no liability to pay spies.
That suit, rejected in Totten v. United States, 92 U.S. 105, was brought by the estate of a man who alleged that he had been personally recruited by Abraham Lincoln to spy behind Confederate lines.
The Ninth Circuit panel said U.S. District Judge Robert S. Lasnik of the Western District of Washington should not have dismissed the action on the basis of the “state secrets” privilege, without at least forcing the agency to explain how national security might be compromised by the suit.
Judge Marsha Berzon and Senior Judge William Canby Jr., the panel majority, said the plaintiffs may sue in federal district court to the extent they allege that the obligation is based on the Constitution, the intelligence statutes, agency regulations—which the appeals court was not in a position to review, because they aren’t published, the judges noted—or estoppel, rather than on a contract.
Totten, they added, must be “applied through the prism of current state secrets doctrine.” That, they said, requires a showing that the national security interest is real and outweighs the rights of the plaintiffs.
“The national interest normally requires both protection of state secrets and the protection of fundamental constitutional rights,” the judges wrote. “Here, the CIA has not invoked the state secrets privilege nor has the district court had the opportunity independently to review the invocation of such a privilege.”
Judge Richard Tallman dissented, arguing that Totten remains controlling. Yesterday, Tallman joined the dissent from denial of en banc rehearing, which was authored by Judge Andrew Kleinfeld and also joined by Judges Alex Kozinski, Diarmuid F. O’Scannlain, Jay Bybee and Consuelo Callahan.
Kleinfeld called the Doe’s case “factually indistinguishable from Totten.”
While the Does have suffered “a serious injustice” if their allegations are true, Kleinfeld said, “the judicial branch cannot right such a wrong without disclosure of the engagement’s existence, which as Totten said, must remain forever secret.”
The judge elaborated:
“It will not do to have word circulating in whatever former Iron Curtain country the Does come from that the collapse of its totalitarian regime was brought about partly by CIA spies and not wholly by its own people’s thirst for freedom. Joshua needed spies, Lincoln needed spies, we needed spies to deal with the Soviet empire, and spies will be needed as long as there are men on earth....The use of spies is far more humane than some of the alternatives for dealing with serious international conflicts. And their use must remain secret.”
The case is Doe v. Tenet, 01-35419.
Copyright 2004, Metropolitan News Company