Spy vs. CIA: It's a shot in the dark
Can a secret agent sue to enforce a contract he agreed to keep secret? The U.S. Supreme Court will hear arguments.
By BILL ADAIR
Published January 10, 2005
WASHINGTON - John Doe, a diplomat for a communist country during the Cold War, wanted to defect to the United States, but the CIA convinced him to stay put and become a spy. In exchange, the agency promised him a new identity in the United States and a lifetime of support.
He says the CIA reneged on that promise.
Doe, who is using a fictitious name because of his secretive role, is the focus of an unusual Supreme Court case involving a little-known CIA program that relocates foreign agents. His case, which will be argued Tuesday, will hinge on how the court interprets a century-old case involving a bumbling spy hired by Abraham Lincoln.
The CIA says Doe has no right to sue because the very existence of a suit would jeopardize national security.
Attorneys and CIA critics say Doe's case could have wide repercussions.
"It's really a question of whether CIA will be held accountable in the courts," said Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists.
Former CIA officers are worried the agency may be earning a reputation for breaking promises, which could hurt efforts to enlist foreign agents.
"It's hard enough to recruit people," said Lindsay Moran, a CIA case officer from 1998 to 2003. "If word spreads that you don't keep your word, it's going to be even harder."
Rushed to a CIA "safe house'
Doe and his wife Jane lived in one of their country's embassies during the Cold War. Disenchanted with communism, they quietly told a U.S. official they wanted to defect.
The CIA intercepted them, rushed them to a "safe house" and held them for nearly 12 hours. The agents pressured them to keep their diplomatic posts and spy for the United States.
The agents promised to eventually relocate them in the United States and "ensure financial and personal security for life."
Neither Doe nor his attorneys were available to comment. These details come from Doe's court filings.
The promise was made under a secret program called PL-110, after the law that authorized it. It is similar to the Witness Protection Program, which provides new identities for important federal witnesses. PL-110, run by a CIA office called the National Resettlement Operations Center, allows the agency to cut through red tape and relocate a small number of foreign citizens every year. In CIA jargon, they are known as "resettlees."
Doe says his spying was "highly dangerous" and that he was under constant surveillance by his country's security agents. But he kept spying - and even extended his work - at the CIA's request.
Eventually, he and Jane were brought to Seattle and given new identities. The CIA offered to let him retire with financial and health benefits, but the Does "desired to work and become integrated into American society," their attorneys said in a court filing.
Doe initially got $20,000 per year from the CIA, which rose to $27,000. But that stipend gradually decreased after he found his job in 1987 and ended once his salary rose to $27,000. When he told the CIA he was worried about what would happen if he lost his job, they promised a lifetime "safety net."
In early 1997, after a corporate merger, he lost his job.
A bumbling spy
The U.S. government has always been worried about secrecy for spies.
In 1779, Gen. George Washington scolded his intelligence chief that details about a spy "should be kept profoundly secret, otherwise we not only lose the benefits desired from (the spying), but may subject him to some unhappy fate."
The tradition continued during the Civil War when President Lincoln secretly enlisted William A. Lloyd to spy on the Confederacy.
Lloyd had the makings of a great secret agent. He had a good cover story - he wrote guidebooks about railroads - and had to travel through the South to conduct his research. Lincoln promised him $200 per month plus expenses, according to Spies & Spymasters of the Civil War, by Donald E. Markle.
In his contract, Lloyd agreed to report on Confederate troops and any plans for "forts and other battle structures." He was to report only to Lincoln.
Lloyd apparently was not very good at espionage. He was imprisoned at least twice because of suspicions he was a spy and, at one point, carried his secret contract in his hat.
Christopher Andrew, author of For the President's Eyes Only, a book about presidential intelligence, portrays Lloyd as a bumbling agent who did little to help the Union effort. Markle portrays him more positively, saying that despite Lloyd's habit of getting arrested, he managed to provide a few useful reports.
Lincoln paid Lloyd's expenses but never his $9,753 salary. After Lincoln was assassinated and Lloyd died, Enoch Totten, the head of the spy's estate, sued the federal government to claim the salary.
In Totten vs. United States, the Supreme Court ruled that Lloyd's estate had no right to sue because the agreement was supposed to be secret. The court said the government could never maintain the secrecy of spies if there were a constant risk they would be publicized by a lawsuit.
The justices wrote, "Both employer and the agent must have understood that the lips of the other were to be forever sealed."
A rejection letter
Doe couldn't find a job.
His court filings say he had difficulty because his "security arrangements" limited him to a particular industry. But times were tough in that industry and companies weren't hiring. He started to drain his retirement savings.
He went to the CIA, warning that he soon would be destitute.
It took four months to get a response: a rejection letter.
"We sympathize with the situation you find yourself in but regret that due to our budget constraints, we are unable to provide you with additional assistance," the agency wrote.
But the CIA thanked him.
"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. We continue to be concerned for your security and welfare and would hope to be flexible should you require assistance in the future. Again, we wish you and your family every success."
Doe's unemployment benefits ran out. He and his wife grew so desperate they moved to a former Eastern Bloc country to live with a relative, even though they might still be subject to death or life imprisonment in that region because of their Cold War spying. Doe found a job in that country.
But he was afraid he had been spotted by a former employee of his former country's security service, so he and Jane returned to the United States.
They found a lawyer willing to work pro bono and filed an appeal to the director of the CIA. The agency offered one year of benefits, but the Does said that wasn't enough. They filed a lawsuit in federal court.
They said they weren't alone. The CIA had reneged on deals with other defectors.
The suit said, "the Agency frequently mistreats defectors after extracting their useful information and service."
U.S. News and World Report found the same thing. The magazine reported two years ago that in the mid 1990s, so many defectors complained about mistreatment that the CIA's inspector general launched an investigation. The magazine said the inspector general discovered that "promises had been broken, largely because of severe budget cuts."
"I don't trust you guys'
The CIA has said relatively little about the case, except that it shouldn't be allowed in court.
In court filings, the agency said the 1875 Totten decision set a precedent for dismissing Doe's case: "Secrecy in all aspects of the CIA's espionage activities is necessary in order to protect the lives of the spies as well as the CIA employees who recruit them."
Doe's claim is similar to Lloyd's, the CIA said, and the Totten decision indicates the case should be thrown out because it "would damage national security."
The CIA won't confirm Doe had an agreement, but court filings by both sides suggest Doe's account is accurate.
In response to the CIA, Doe's attorneys say he is entitled to file his case because the CIA should not have unchecked power. The case can be handled in closed sessions to make sure no secrets are revealed, they say.
The courts have not ruled on the merits of the case because they first must decide whether the case can even be heard. But so far, they have sided with Doe.
The Ninth Circuit Court of Appeals said the Does "have done everything in their power not to reveal secret information," by filing under fictitious names and not revealing details about their spying. The court said the case can be treated so that national security is not jeopardized.
Mark Zaid, an attorney who has represented former CIA employees in lawsuits against the agency, said he was surprised the agency is unwilling to help the Does. It's a relatively small amount of money and publicity about the case could hurt efforts to recruit future defectors.
"It may one day cost us dearly when that potential double agent who now lives in Tehran reads about that decision and says, "Forget it. I don't trust you guys."'
Aftergood, a frequent critic of the CIA for being too secretive, says the Supreme Court has an opportunity to hold the agency accountable.
"CIA is notoriously stingy with information," he said. "In some respects, there are good reasons for that. But many people - including myself - believe the agency has been given too long a leash."
[Last modified January 10, 2005, 11:27:04]
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