Court to Hear Arguments of CIA Spies
Former Soviet-Bloc Couple Sued Agency for Breach of Clandestine Deal
By Charles Lane
Washington Post Staff Writer
Monday, January 10, 2005; Page A02
Espionage is not a sentimental business. Just ask John and Jane Doe, a pseudonymous married couple who agreed to betray their Soviet-bloc homeland during the Cold War in return for what they thought was a promise from the CIA of a new home in the United States and a lifetime income.
The Does say they did their part, performing perilous clandestine work for U.S. intelligence overseas. And at first, they say, the CIA came through for them, placing them in Seattle under new identities and finding John Doe a job at a local bank, supplemented initially by a cash stipend.
But, in 1997, the bank was involved in a merger, and Doe was downsized. Aging, unemployed and out of money, he went back to the CIA and asked it to resume payments. After the agency refused, citing "budget constraints," the Does sued, demanding that the CIA pay up -- or at least give them a fair hearing.
Tomorrow the Does' case reaches the Supreme Court, in an oral argument that could have been scripted by John le Carre.
In legal terms, the issue in Tenet v. Doe, No. 03-1395, is whether a secret deal to spy for the United States creates legal rights that a CIA recruit can enforce in court, as the Does say -- or constitutes a shadowy pact that may never be acknowledged, much less haggled over before a judge, as the CIA says.
But the mere existence of the case is unwelcome news for the CIA, because it reopens an issue that has plagued the agency for years: accusations that the CIA entices spies and defectors with sweet offers of cash and comfort, then puts them back out in the cold once they are no longer useful.
It is a complaint that the agency has struggled to overcome and that it can ill afford to confront publicly at a time when human intelligence sources within terrorist networks are at a premium.
"The agency's reputation is important," said William H. Webster, a former director of central intelligence under presidents Ronald Reagan and George H.W. Bush. It would be harmful to U.S. interests, he said in an interview, "if word gets around that you don't honor commitments."
Many details of the Does' story -- including their real names and their country of origin -- remain undisclosed, because the Does and the CIA agreed to keep such facts out of the public record. And the tale that emerges from their suit and lower court rulings is necessarily one-sided, because the CIA is not legally obligated to rebut each of their claims at this stage of the case.
But the case apparently began about 20 years ago, when John Doe was working as a senior diplomat for a Soviet-bloc country. He and Jane Doe approached the CIA in a third country and offered to defect.
During what the Does' complaint describes as a tense 12-hour meeting at a CIA safe house, CIA officers talked by phone with headquarters, where senior officials authorized a deal: The Does would stay and spy for the United States, and the CIA would later bring them to this country and ensure their financial security for life.
The Does portray this as CIA arm-twisting, which they tried and failed to resist, but former U.S. intelligence officials depict the transaction differently.
"That's standard operating procedure," said Fritz W. Ermarth, who served as the CIA's top analyst on Soviet and East European affairs. Ermarth and other former officials said the CIA often must deal that way with "walk-ins" to make sure they are not double agents.
Some time later, after the Does had carried out what they say were several dangerous secret spying missions for the CIA, the agency did arrange for them to come to the United States. It supplied them with false résumés, "educational benefits," housing, health care and an annual stipend that started at $20,000.
The payments peaked at $27,000 in 1987, at which point John Doe took the bank job. He and the CIA agreed that, as his pay increased, the CIA stipend would shrink accordingly. It was at zero when John Doe suddenly lost his job in 1997.
And that is where the dispute begins. Doe says the CIA repeatedly assured him that it was required by U.S. law to guarantee defectors lifetime financial stability, so it would resume payments if he lost his job.
An agency official, however, submitted an affidavit in the case asserting that there is no such law, regulation or internal CIA policy.
Such disputes have been all too common between the CIA and the perhaps hundreds of Cold War-era defectors under CIA supervision -- who sometimes have a higher opinion of their value to the United States than the United States does, former intelligence officials say.
In the 1980s, complaints about purported CIA stinginess received a sympathetic hearing from then-CIA Director William J. Casey. They were partly answered by the formation of the Jamestown Foundation, a private organization backed by Casey that helped defectors earn money lecturing and publishing articles.
In the 1990s, former KGB major Viktor Sheymov, unhappy with his treatment, hired former CIA director R. James Woolsey as his attorney and hammered out a secret settlement with the agency.
"One of the toughest jobs in the agency is managing the defector resettlement program," said Milt Bearden, a former chief of the CIA's clandestine operations in the Soviet bloc. "You have to keep everyone happy without making everyone millionaires."
The agency has instituted an internal review process to resolve disputes, former officials said.
But the Does' complaint alleges that, for them, the process consisted of little more than a bureaucratic runaround. So, in 2000, they sued in a Seattle federal court.
The CIA asked the court to dismiss the case, arguing that it was barred by the Supreme Court's ruling in an 1875 case known as Totten v. United States, which held that a dispute over a contract between President Abraham Lincoln and a Civil War spy could not be litigated because the arrangement was supposed to be kept secret.
"Both employer and agent must have understood that the lips of the other were to be forever sealed," the court noted, so the very bringing of a suit would violate the deal.
The CIA has historically relied on Totten, and to change that "will hamstring the flexibility the CIA will have to deal with the people it is trying to recruit," said Jeffrey H. Smith, who served as CIA general counsel under President Bill Clinton.
But both the Seattle district court and the San Francisco-based U.S. Court of Appeals for the 9th Circuit ruled that the Does' suit could go forward.
The case involved issues not only of contract enforcement but also of constitutional due process, the courts said. They also noted that the CIA's sources and methods could be protected by alternative means.
In urging the Supreme Court to reverse the 9th Circuit, the Bush administration argues in its brief that exposing the CIA to such a lawsuit would open the door to "graymail" by legions of disgruntled defectors.
But the Does' brief -- noting that the court recently asserted the judiciary's power to review the detention of accused terrorists in the prison at Guantanamo Bay, Cuba -- urged the justices to reject "the Executive's extreme position that the Executive Branch has absolute and unreviewable power to unilaterally terminate a judicial case."