Lawsuit could affect spy recruitment

By Mike Carter
Seattle Times staff reporter

E-mail this article Print this article Search archive Most read articles Most e-mailed articles

The high court yesterday said it would hear the case of the couple, identified only as John and Jane Doe, who sued the CIA and its former director, George Tenet, in 1999, claiming they were abandoned by the agency after risking their lives.

Steven Hale, the attorney for the couple and a former CIA lawyer himself, said the case has shaped into the "granddaddy" case that should define the rights of people who spy for the U.S. and the responsibilities of the government to take care of them.

"There's never been a case quite as on-point as this one," said Hale.

Hale sees stark similarities between the Cold War and the emerging war on terrorism. How the case of his clients is decided, he believes, will determine whether the U.S. will be able to obtain the sort of "human intelligence" that the government has admitted it lacked before the Sept. 11, 2001, attacks.

"Can you imagine trying to recruit a general from Iran, or Pakistan, or Afghanistan, when they know that this government could simply cast them aside?" Hale asked. "I can't see how this administration could try to recruit these people, and ask them to risk their lives, under this policy."

At issue is a Civil War-era doctrine that prohibits courts from reviewing secret agreements between the U.S. and its spies.

In 1861, a man named William Lloyd was paid $200 a month by President Abraham Lincoln to infiltrate the Confederacy and provide information on the rebel army's troop movements and fortifications. The man's estate later attempted to get more money. The justices, in a case called "Totten vs. United States," decided that such "secret service" contracts cannot be reviewed by the courts.

Assistant U.S. Attorney Brian Kipnis agreed that the appeal turns squarely on the so-called "Totten Doctrine," which the Supreme Court has not addressed head-on in 129 years.

"This is the first time this doctrine has been directly examined in a long, long time," Kipnis said.

The CIA claims the doctrine should preclude the Seattle-area couple from suing. However, a federal judge in Seattle and a panel from the 9th Circuit Court of Appeals have ruled in favor of the couple.
 
Their 1999 lawsuit alleges that John Doe was a senior diplomat for an unnamed Eastern Bloc country — identified only as an "enemy" of the U.S. — during the Cold War, which lasted from the end of World War II until the dissolution of the Soviet Union in the late 1980s.

Doe says that, while working as a diplomat in a third country, he attempted to defect. Instead, he was reluctantly recruited by the CIA as a spy. He says he undertook increasingly dangerous assignments until his exposure as a spy and subsequent death sentence were imminent.

Despite the end of the Cold War, Doe says his life remains in danger because of the amount and type of information he provided his U.S. handlers.

The couple — Doe's wife is identified as a diplomat as well — eventually settled in the Seattle area and were provided with new identities and given help finding jobs using CIA-generated resumes. John Doe claims the agency promised him lifelong support.

However, Doe lost his job and the agency cut him loose — first citing budget constraints, and later saying the government had paid enough for the services he rendered.

Hale said all the Does want is a fair way to review the CIA's decision.

"The government would have you believe they want some sort of stipend that will keep them fat and sassy," said Hale, whose firm is handling the case for free. "Nothing could be farther from the truth."

His firm, Perkins Coie, has spent nearly $1.6 million so far on the Doe litigation.