- The Washington Times - Tuesday, January 11, 2005

ASSOCIATED PRESS

Secret spy deals should never be litigated in court because of the danger to national security, the Supreme Court was told yesterday, as it heard arguments in a case involving former Cold War spies who say the CIA backed out of a pledge to offer lifetime support.

The Supreme Court is considering whether a former Eastern bloc diplomat and his wife can sue the CIA over what they called a broken promise to provide them with financial security for life.

“There’s something inherent about an espionage relationship that you understand you have no protected status under the law,” acting Solicitor General Paul Clement said.

But David Burman, who represents the couple, said the executive branch should not have the power to renege on spy contracts without some judicial review.

“This is not about the protection of state secrets, but about the limits of executive power,” he said.

Several justices appeared hesitant to have federal courts referee spy deals, noting that not only spies, but CIA officials, accept that they might be stabbed in the back when making secret deals.

At issue is whether a 130-year-old Supreme Court ruling automatically bars federal courts from hearing lawsuits over spy contracts, which the CIA says are secret deals that can never be acknowledged.

The Bush administration argues that since the CIA was created in 1947, courts have dismissed spy lawsuits outright on the grounds that any disclosure could undermine CIA recruitment efforts.

“Vital to the government’s success in penetrating terrorist cells and gathering intelligence about an enemy’s capabilities and intentions is the use of human intelligence sources,” Mr. Clement writes in filings, citing heightened risks in a post-September 11 world.

The couple, who are identified in filings as John and Jane Doe, counter that they are entitled to some judicial review. Sensitive information could be kept secret by sealing records or other methods, they say.

“The agency pressured the Does into undertaking espionage that would virtually guarantee that their activities would become known” to their home country, “putting them at lifelong risk of retaliation, including assassination,” their filings state.

The San Francisco-based 9th U.S. Circuit Court of Appeals agreed, ruling that the couple had a right to obtain documents and other information from the CIA to build its trial case. It said recent rulings have allowed litigation to proceed in cases involving questions of national security if the government doesn’t show a clear risk.

“We should not precipitously close the courthouse doors to colorable claims of the denial of constitutional rights,” the 9th Circuit stated, noting that the Does have sought to keep sensitive information secret by clearing their complaint with the CIA first.

The case involves a former high-ranking diplomat and his wife who wanted to defect from their Eastern bloc country, but were pressured by U.S. authorities to spy for the United States instead, according to the lawsuit. In exchange, the CIA promised to help them later defect as well as provide lifetime security.

When their spying mission was completed in 1987, the CIA helped them resettle in Seattle with new identities, benefits and a bank job for the husband, the lawsuit says. They initially received a $27,000 yearly stipend and became U.S. citizens.

The CIA stopped the subsidy when John Doe’s salary from the bank hit $27,000, but the two were promised the agency would “always be there.” However, the couple says, when Doe lost his job in 1997, the CIA refused to reinstate the stipend, saying the couple had received enough pay for their spy services.

When the Does filed suit, the CIA pointed to the 1875 Supreme Court ruling in Totten v. United States, which found that a dispute between President Lincoln and a Civil War spy could not be litigated because the arrangement was supposed to be kept secret.

A ruling is expected by late June.

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