Post by Moses on Jan 5, 2005 9:58:25 GMT -5
www.baltimoresun.com/news/nationworld/bal-te.spies05jan05,1,2153755.story?coll=bal-home-headlines
Legal spy thriller heads to Supreme Court
Suit: Couple claim CIA reneged on deal.[/b]
By Gail Gibson
Sun National Staff
January 5, 2005
He was a high-level diplomat in Cold War Eastern Europe who had grown disillusioned with communism and wanted to defect to the United States. Then the Central Intelligence Agency stepped in with an offer he and his wife say they could not refuse.
If the couple agreed to spy for the United States, the CIA promised U.S. citizenship and lifetime support. But years after the Cold War's thaw, the former Eastern Bloc spies, now living under assumed names in Washington state, say the agency did not keep its end of the deal.
The pair say their CIA benefits were cut off years ago, and they no longer can afford needed medical care. To stretch their meager savings, they might have to move back to the country where they once passed national secrets and where they fear they still could face death or prison time if discovered.
For the one-time spy team - identified only by the pseudonyms "John and Jane Doe" - their best hope now rests with the U.S. Supreme Court, which hears arguments next week in a lawsuit the couple brought five years ago that could reshape the legal rights of spies.
"This is one where I think most of us would have mixed feelings," said Robert F. Turner, associate director of the University of Virginia's Center for National Security Law. "If you want to get good intelligence assets in the future, you have to make sure that you take care of people who have served you in the past. At the same time, there also is a very important separation of powers issue here. ... If you allow that kind of discussion to get into open court, great harm can be done."
At issue is a Civil War-era doctrine prohibiting lawsuits against the U.S. government over contracts for spy work. Or, as the Supreme Court ruled in the 1875 case involving the estate of Union spy William Lloyd, "Both employer and agent must have understood that the lips of the other were to be for ever sealed respecting the relation of either to the matter."
Two federal courts have ruled that the nearly 130-year-old decision should not stop John and Jane Doe's case against the CIA from going forward and that the CIA can challenge the claims under narrower "state secrets" protections. But government lawyers say the premise of the Civil War spy case still is sound - inherently secret agreements should not be subjected to any public airing in court.
The 1875 precedent "protects against potentially devastating disclosures of national security information, discourages lawsuits from being filed in the first place and prevents the judiciary from reviewing what is quintessentially core executive branch function," former Solicitor General Theodore B. Olson argued in court papers for the agency.
Unhappy spies, he added, would have better luck appealing to the CIA instead of the courts in any event. "Because human sources are essential to collecting intelligence, the CIA has an obvious incentive to preserve its reputation of being fair and honoring commitments to its sources," Olson wrote.
But that was not the experience of John and Jane Doe, the couple claim in court papers that offer an intriguing peek at the cloak and dagger of the Cold War, followed by the ordinary travails of an aging white-collar professional caught up in corporate down-sizing.
Their case holds broad implications for other legal challenges involving classified information and what can be released in courts, said Washington attorney Mark S. Zaid, who has specialized in lawsuits against the CIA. It also could directly affect spy recruiting efforts in the current war on terrorism.
"The government's argument sends a chilling message to anyone who would ever help the U.S. government, and that message is - don't," Zaid said. "The message that would come if the Supreme Court [ruled against the Does] is, 'We can make any promise we want to defectors or cooperators or would-be spies, and we can then stab them in the back, with no recourse for them.'" [No recourse is what they plan for all of us]
John and Jane Doe have not spoken publicly and have disclosed few identifying details about their lives. Their attorney, Steven Hale of the Seattle law firm Perkins Coie, has avoided commenting on the case as well and did not respond to requests for comment last week. The story behind the lawsuit, though, is told in tantalizing snippets in court papers.
"My wife and I were formerly citizens of a foreign nation then considered to be an enemy of the United States, and I was a high-ranking diplomat for such foreign nation," John Doe said in a sworn statement that carefully edited revealing information. "We were well educated and highly successful in our society, but were disenchanted with Communism."
While working as a senior diplomat outside his home country during the Cold War, John Doe said he and his wife approached the U.S. Embassy there and asked for help defecting to the United States.
For the next 12 hours, he said, the couple were sequestered in a CIA safe house and pressured to agree to spy.
"The agents employed various forms of intimidation and coercion to convince us that we could not survive in the United States without agency assistance," John Doe said. "The agents asserted that, to obtain such assistance, we would be required to remain at our current diplomatic post and conduct espionage for the United States for a specific period of time, after which time the agency would arrange for travel to the United States and ensure financial and personal security for life."
John and Jane Doe say they kept their part of the bargain, performing what he described as "highly dangerous and valuable assignments." They were eventually brought to the United States, where the CIA gave them assumed names and helped John Doe find work in 1987 with a fictitious resume, according to his statement.
As his salary increased, eventually reaching about $27,000, the agency's living stipend decreased and then ended, John Doe said. That became a problem in 1997, when he was laid off after a corporate merger.
He wrote to the agency to ask for the financial benefits to resume and for help finding a new job. Four months later, the agency responded that it could not offer any payments "due to our budget constraints" and offered the name of a job search company in Seattle.
"We were very sorry to learn that you were laid off from your position at the bank," the letter said. "We want you to know that this office has great respect for the people we serve and we remain grateful for your past service to this country."
The Does launched an administrative appeal and the agency eventually agreed to pay benefits to the couple for one year if they waived any future challenge. Frustrated by the CIA's refusal to release information on benefit arrangements with high-value defectors or to fully explain the agency's appeal process, the couple sued.
The couple found themselves up against what Janine Brookner, a former CIA agent and author of Piercing the Veil: Litigation against U.S. Intelligence, describes as the surreal legal experience of trying to take on the government's most clandestine agency.
"The CIA controls virtually all the evidence," Brookner said in her book released earlier this year. "It is notorious for over-classification of information, and perfunctorily classifies just about every piece of paper which it produces."
Some cases do succeed. Brookner sued the agency for employment discrimination and retaliation as a Jane Doe in the early 1990s and won more than $400,000 in a settlement. But in her book, Brookner said it is not easy to win against an agency that routinely invokes the state secrets privilege to block information and "redacts the name of every city where it has a station or other covert office from all court documents, even though this information is common knowledge."
When the case of John and Jane Doe reached the U.S. District Court in Seattle, the government took a more direct approach: It pointed to the 1875 ruling from the case of Totten v. United States - often referred to as the Totten Doctrine - and asked that the case be dismissed.
Government lawyers said the case could not proceed "without disclosing facts that would damage national security: whether [they] actually had an espionage relationship with the CIA and, if so, the details of that relationship."
A trial-level federal judge and a divided San Francisco-based 9th U.S. Circuit Court of Appeals said the case should be allowed to go forward. In their rulings, the courts noted that other state secret protections had evolved since the case of William A. Lloyd, who had contracted with President Abraham Lincoln to spy behind Confederate lines for $200 a month.
Lloyd's estate later claimed, unsuccessfully, that the government had only covered his expenses.
In arguing that the government should have a rehearing before the appeals court, one of the panel's judges called the Civil War-era case "factually indistinguishable" from the current case of John and Jane Doe.
"Like Lloyd, they served to the great benefit of the United States in circumstances that could have gotten them killed," U.S. Circuit Judge Andrew Jay Kleinfeld said. "And like Lloyd, they allegedly got stiffed by the government providing less compensation than required by the contracts when the time came for the United States to pay up."