Friday, May 30, 2003
Ninth Circuit Says Alleged Cold War Spies May Sue CIA for Pay
By KENNETH OFGANG, Staff Writer/Appellate Courts
A U.S. district judge acted precipitously in dismissing a suit by a couple who allege that they spied for the United States in their homeland during the Cold War, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
A divided 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 Central Intelligence Agency to explain how national security might be compromised by the suit.
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.
Lifetime Benefits Claim
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 the Seattle area, 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 refused to assist, forcing them to seek representation.
They are now represented by Steven W. Hale and Elizabeth A. Alaniz of the Seattle office or Perkins Coie LLP.
In response, 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.
But Judge Marsha Berzon and Senior Judge William Canby Jr., the Court of Appeals 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 court was not in a position to review, because they aren’t published, the judges noted—or estoppel, rather than on a contract.
The Civil War-era case relied on by the agency, 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.... The Does’ case must therefore be remanded to the district court to provide the Agency the opportunity to formally invoke the state secrets privilege. If the Agency chooses to do so, the district court must then, after careful inquiry and consideration of alternative modes of adjudication, and with the utmost deference to the government’s determination of national security interests, evaluate whether any aspect of the Does’ case can go forward.”
Judge Richard Tallman dissented. “It is the prerogative of the Supreme Court,” he argued, “not ours, to decide whether Totten v. United States, 92 U.S. 105 (1875), continues to bar judicial review of actions arising from espionage services performed for the United States by secret agents, or whether the Totten doctrine has somehow been supplanted by the modern state secrets evidentiary privilege....”
The case is Doe v. Tenet, 01-35419.
Copyright 2003, Metropolitan News Company