Suspicious Behavior
The Ninth Circuit lets ex-spies sue the CIA.


Tuesday, the federal appeals court in Washington, D.C., ruled that the government is not obligated to release the names of detainees (nor those of their lawyers) who were taken into custody in the wake of the terrorist attacks of September 11, 2001.

The D.C. Circuit’s 2-to-1 ruling came as a defeat for activist groups that had filed a Freedom of Information Act suit, seeking to force the government to disclose information about the detainees and the circumstances of their arrests and detention. But the decision in Center for National Security Studies v. Department of Justice also came as a victory for common sense.

The court accepted as reasonable the government’s argument that “disclosure of the detainees’ names would enable al Qaeda or other terrorist groups to map the course of the investigation and thus develop the means to impede it.” In reaching this result, the court embraced the traditional view that a healthy dose of judicial deference to the executive branch is warranted when it comes to national-security matters. As Judge David Sentelle’s majority opinion noted: “America faces an enemy just as real as its former Cold War foes, with capabilities beyond the capacity of the judiciary to explore.”

Regrettably, however, such clear thinking was not in evidence in a recent decision issued by the federal appeals court on the other side of the country. To wit, three weeks ago, the Ninth Circuit, which handles appeals from California and six other western states, plus Alaska and Hawaii, lived up to its reputation for activist jurisprudence — big-time.

In Doe v. Tenet, the Ninth Circuit ruled that a pair of ex-spies (allegedly onetime citizens of a former Soviet bloc country recruited as U.S. agents) could proceed with their lawsuit against the Central Intelligence Agency.

The plaintiffs, John and Jane Doe, allege that the CIA reneged on a promise to provide them with lifetime financial security and other assistance. As the court explained, the plaintiffs allege that after performing whatever services they were recruited to perform, they were resettled in the United States, where the CIA provided them with compensation and helped Doe obtain employment. The CIA allegedly continued to supplement their income until Doe’s salary reached a certain level, at which point the payments were stopped. Later, however, Doe lost his job, and the CIA allegedly declined to resume payments or to provide any further benefits. So the former spies sued the CIA, asserting various due-process and equal-protection claims.

Judge Marsha Berzon wrote the majority opinion, in which she explained that the former spies’ lawsuit was not precluded by the precedent established by the Supreme Court in Totten v. United States. In that post-Civil War case, the Court ruled that the estate of an agent hired by President Lincoln to spy on the Confederacy could not sue the government to enforce the secret agreement. Focusing on the inherently secretive nature of espionage activity, the Court erected a barrier against “any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential.” Suits filed by spies against the government would fall into this category.

Undaunted by this seemingly insurmountable hurdle, Judge Berzon theorized that when “[r]ead with care,” Totten does not require dismissal of all cases arising out of an espionage relationship. In order to reach this result, the Ninth Circuit merged what it called the “venerable” Totten doctrine with an evidentiary privilege that applies to the discovery of classified documents. When properly asserted, the so-called state-secrets privilege allows the government to withhold classified material — in cases that are not otherwise barred and subject to dismissal at the outset. It has no bearing on cases which, as a result of their subject matter (e.g., espionage agreements), fall outside the courts’ jurisdiction.

Judge Richard Tallman — who, like Judge Berzon, was appointed by President Clinton — issued a strong dissenting opinion. He noted that it is not the Ninth Circuit’s role to overrule the Supreme Court: “There has been no change in the law of spy contracts since Totten was decided in 1875. The secret existence of the espionage relationship and a claim for greater compensation was not justiciable then; it is not justiciable now.”

“Unlike the majority,” said Judge Tallman, “I have no difficulty rejecting the plaintiffs’ invitation to second-guess the DCI’s [Director of Central Intelligence] determination of what information remains harmful to national security…”

There is a lot that one could about this case. But the absurdity of allowing former foreign agents to sue the CIA should be obvious to anyone not occupying a tenured faculty position. The business of recruiting and handling foreign intelligence assets is obviously dirty and important work, which is best left to the folks who engage in it for a living. Such activities hardly lend themselves to legal niceties like the finer points of due process — much less to litigation in the courts. To hold otherwise is both unwise and dangerous.

The Ninth Circuit was good enough to file its decision as “For Publication.” That means it can be cited as precedent in the Ninth Circuit. One can only hope it won’t be for long.

Robert Pambianco is an attorney in Washington, D.C.