Pair Who Claim to Be Spies Can Sue CIA, Court Rules

A federal appeals court in San Francisco ruled Thursday that a Seattle couple are entitled to sue the CIA for reneging on an agreement to support them for life. The two contend they spied for the U.S. against a former Eastern bloc country before the CIA brought them to this country more than 15 years ago.

The U.S. 9th Circuit Court of Appeals said that the couple, identified only as Jane and John Doe, say that the CIA owes them money and that their lives are still at risk because of the work they did for the CIA.

The suit states that after performing a variety of dangerous operations, they were resettled in the Seattle area and given new identities. The couple received as much as $27,000 a year until so-called John Doe began earning more than that as a bank official. The suit alleges that the agency ceased helping the couple after John lost his job in 1997 as a result of a corporate merger.

The CIA, citing national security interests, has declined to either confirm or deny the couple’s allegations. On Thursday, both the CIA and the Justice Department declined comment on the ruling.

In its 2-1 decision, the 9th Circuit rebuffed the CIA’s contention that it was exempt from suit because of an 1875 Supreme Court decision called Totten vs. U.S.

In that case, the high court held that the heirs of William A. Lloyd, a spy hired by Abraham Lincoln to gain information on Confederate troop positions, were not entitled to a court hearing on their claim that the government failed to honor its promise to compensate Lloyd.

Compelling the government to reveal secret contracts could compromise national security, the high court said. The CIA said the Totten case was an absolute bar to the current lawsuit.

The 9th Circuit disagreed. While the Totten decision retains its “core vitality,” the Seattle couple’s case raises more than contract claims, 9th Circuit Judge Marsha S. Berzon wrote. It also claims their right to due process of law was violated when the CIA ended their benefits without providing them a fair chance to appeal that decision.

Berzon, joined by Judge William C. Canby Jr., said the suit raised sufficient allegations for the case to move forward.

Berzon acknowledged that the couple eventually could “be left without redress,” even if all their allegations are true, if the government is able to make a persuasive argument that the case is prohibited because of the state secrets doctrine.

But to close courthouse doors to the couple now, she wrote, would be encouraging “both executive overreaching and a corrosive appearance of inequitable treatment of those who have undertaken great risks to help our nation, an appearance that could itself have long-run national security implications.”

Ninth Circuit Judge Richard C. Tallman dissented, saying that the Totten decision was an absolute bar to the suit. He said that federal judges are ill-advised to second-guess decisions made by the CIA.

The court sent the case back to U.S. District Judge Robert S. Lasnik in Seattle for further proceedings.

Steven W. Hale, a former CIA lawyer who now represents the couple, called the 9th Circuit ruling “a fabulous victory for our clients and for the country.”

He said he had been told by people in the agency that the CIA also had abrogated its agreements to support a number of other people who had worked for the agency abroad and were then brought to the U.S. under a federal law enacted in 1949.

That statute permits up to 100 foreigners a year to become permanent residents of the United States when the director of Central Intelligence and the attorney general certify that such an action “is in the interest of national security or essential to the furtherance of the national intelligence mission.” A CIA spokeswoman declined to comment on how many people had been brought into the U.S. under this program.

The 9th Circuit emphasized in its decision that, under federal rules of civil procedure governing the case, it has to assume at this stage that the facts asserted by the plaintiffs are true.

Citing the lawsuit, the court said that “during his tenure as a high-ranking diplomat” for an Eastern bloc country during the Cold War, “Mr. Doe approached a person associated with the United States Embassy and requested assistance defecting to the United States.”

Then, it said, CIA agents took them to a safe house and “employed intimidation and coercion to convince the Does to remain instead at their diplomatic posts and to engage in espionage for the United States,” in return for which they would eventually be relocated to the U.S. and provided with financial and personal security “for life.”

The Does contend that they fulfilled their end of the bargain and were brought to the U.S. in 1987, provided with new identities, housing and assistance in finding employment.

The 9th Circuit decision notes that the couple’s suit alleges that the CIA sent a letter to them on June 5, 1997, “admitting a relationship.” According to the suit, the letter read, “We sympathize with the situation you now find yourself in but regret that due to budget constraints, we are unable to provide you with additional financial assistance.”

Two legal experts on national security said the case is quite significant. Jonathan Turley, a George Washington University law professor, said the mere existence of such a lawsuit is trouble for the CIA.

If people in foreign countries who the CIA hopes to recruit as spies see that individuals who did this work in the past have to go to court to get compensation, it will be more difficult to recruit people abroad to perform espionage, Turley said. “The CIA operates largely on assurances that it will be a faithful partner,” but it is “the only [U.S. government] agency that routinely makes ... contracts without expectations of accountability,” he added.

Robert F. Turner, a former State Department lawyer who teaches at the University of Virginia Law School, agreed that, “on pragmatic grounds alone,” if the U.S. does not “live up to our promises to foreign agents who do our bidding ... it may be more difficult to recruit agents in the future.”

However, Turner said he thought that the Totten ruling bars the suit, despite the arguments of the 9th Circuit majority to the contrary. “I think it is going to be hard to decide this case for the plaintiffs without overturning or dramatically modifying Totten,” Turner said.