INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 1998 (House of Representatives - July 09, 1997)


Mr. TRAFICANT. Mr. Chairman, I offer an amendment to title III that deals with the Totten doctrine.

The Clerk read as follows:

Amendment No. 5 offered by Mr. Traficant:

Page 10, after line 15, insert the following new section:


(a) Assignment of Judges.--The Chief Justice of the United States shall assign 3 circuit judges or justices (which may include senior judges or retired justices) to a division of the United States Court of Appeals for the District of Columbia for the purpose of determining whether an action brought by a person, including a foreign national, in a court of the United States of competent jurisdiction for compensation for services performed for the United States pursuant to a secret Government contract may be tried by the court. The division of the court may not determine that the case cannot be heard solely on the basis of the nature of the services to be provided under the contract.

(b) Assignment and Terms.--Not more than 1 justice or judge or senior or retired judge may be assigned to the division of the court from a particular court. Judges and justices shall be assigned to the division of the court for periods of 2-years each; the first of which shall commence on the date of the enactment of this Act.

(c) Factors in Division's Deliberations.--In deciding whether an action described in subsection (a) should be tried by the court, the division of the court shall determine whether the information that would be disclosed in adjudicating the action would do serious damage to the national security of the United States or would compromise the safety and security of intelligence sources inside or outside the United States. If the division of the court determines that the case may be heard, the division may prescribe steps that the court in which the case is to be heard shall take to protect the national security of the United States and intelligence sources and methods, which may include holding the proceedings in camera.

(d) Referral of Cases.--In any case in which an action described in subsection (a) is brought and otherwise complies with applicable procedural and statutory requirements, the court shall forthwith refer the case of the division of the court.

(e) Effect of Division's Determination.--If the division of the court determines under this section that an action should be tried by the court, that court shall proceed with the trial of the action, notwithstanding any other provision of law.

(f) Other Judicial Assignments Not Barred.--Assignemt of a justice or judge to the division of the court under subsection (a) shall not be a bar to other judicial assignments during the 2-year term of such justice or judge.

(g) Vacancies.--Any vacancy in the division of the court shall be filled only for the remainder of the 2-year period within which such vacancy occurs and in the same manner as the original appointment was made.

(h) Support Services.--The Clerk of the United States Court of Appeals for the District of Columbia Circuit shall serve as the clerk of the division of the court and shall provide such services as are needed by the division of the court.

(i) Definitions.--For purposes of this section--

(1) the term `secret Government contract' means a contract, whether express or implied, that is entered into with a member of the intelligence community, to perform activities subject to the reporting requirements of title V of the National Security Act of 1947 (50 U.S.C. 413 and following); and

(2) the term `member of the intelligence community' means any entity in the intelligence community as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. App. 401a(4)).

(j) Applicability of Section.--

(1) In general.--This section applies to claims arising on or after December 1, 1976.

(2) Waiver of statute of limitations.--With respect to any claim arising before the enactment of this Act which would be barred because of the requirements of section 2401 or 2501 of title 28, United States Code, those sections shall not apply to an action brought on such claim within 2 years after the date of the enactment of this Act.

Mr. GOSS. Mr. Chairman, I will reserve a point of order, if this is the amendment I think it is, that the gentleman's amendment is not germane.

The CHAIRMAN. The point of order is reserved and the gentleman from Ohio [Mr. Traficant] is recognized for 5 minutes.

Mr. TRAFICANT. Mr. Chairman, I had cited earlier this whole issue dealing with the Totten doctrine. Totten versus United States, the Supreme Court ruling in 1876, dealt with a secret contract where Abraham Lincoln, President Lincoln, had an individual working in an underground capacity. Upon the death of this individual, there was a lawsuit that emanated from those services, and from there came the decision that secret contracts are unenforceable and not eligible for adjudication.

So the Totten doctrine, in essence, bars the judiciary from adjudicating disputes arising out of secret government contracts. Now, that is in 1876. Now we have come to an intelligence community where we have many intelligence operatives that believe they have been wronged. If they attempt to adjudicate these matters or seek relief through the courts, the Totten doctrine is simply cited and they are barred from any further adjudicative action.

What the Traficant amendment would do, and I understand the point of germaneness here, but there must be some commitment coming from the leadership of intelligence if we are to do anything about the camaraderie and the ability to have good field operatives. We must look at the Traficant amendment.

Now, let me just close out here. The amendment calls for a three-member panel appointed by the Supreme Court in the U.S. District Court of Appeals in the Nation's Capital. They would review these claims, they would have the option of saying there is meritorious claim here or not. And if they did, they could set up that trial in camera.

We at this point have already gone into that judiciary type of activity. We have at this time allowed certain types of Federal judiciary cases on secret contracts involving, for example, the CIA and private contractors, to be adjudicated. They have been handled without any breach of national security.

And for those opponents who say our judges are not prepared to deal with these secret issues, I think if they can handle these broad tax cases, complicated environmental and toxic waste types of cases, they can certainly handle these.

I know it is not the intention of the Congress of the United States to have 450 South Vietnamese, many of them who have given up their lives in espionage activities for our country, to have been abandoned. And what we have on record is that they have been abandoned by our intelligence community and then their families, and in agreements made with their families, that agreement was abrogated. That compensation was not made, to the point where Congress gave $20 million last year and that money has still not been given to the survivors of those individuals who gave up their lives in our efforts in Southeast Asia. Unbelievable to me. And they cite, among other reasons, the Totten doctrine.

So all I am saying is that at some particular point, I understand the germaneness issue, but I know that the gentleman's committee has been fair, but I believe this hurts camaraderie, this hurts our acquisition and recruiting of top-notch agents. The word is out that one can get shafted; watch yourself. That is not the type of predicate we need to recruit the type of individuals that give us the intelligence we need. And we will keep reading and hearing about intelligence activities from CNN not from our own intelligence sources.

So I will ask, if I could, Mr. Chairman, the chairman of the Judiciary Subcommittee with jurisdiction to give consideration, since they are considering this to be a germaneness problem to Judiciary. But let me also say this to the intelligence community: Even though this is a Judiciary matter, its overtones in intelligence are so great, the shadows so great, I do not believe we can have a good intelligence program without addressing this old statute.

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Mr. McCOLLUM. Mr. Chairman, will the gentleman yield?

Mr. TRAFICANT. I yield to the gentleman from Florida.

Mr. McCOLLUM. Mr. Chairman, I am actually not the chairman of the critical subcommittee, the one on courts, but I am a member of the Subcommittee on Courts and Intellectual Property, and I would agree to work with the gentleman toward getting a hearing, an opportunity in the Committee on the Judiciary and the Subcommittee on Courts and Intellectual Property to go over this proposal.

I think it is a proposal that needs to be discussed, but I have no authority to be the chairman to say that I can hold the hearing. This is not my subcommittee.

Mr. TRAFICANT. Reclaiming my time, Mr. Chairman, let me just say to the gentleman that I appreciate that.

Mr. DICKS. Mr. Chairman, will the gentleman yield?

Mr. TRAFICANT. I yield to the gentleman from Washington.

(Mr. DICKS asked and was given permission to revise and extend his remarks.)

Mr. DICKS. Mr. Chairman, I would say to the gentleman that we are now checking at the Defense Department about the $20 million. And the gentleman, I think, has made a very important case here.

The CHAIRMAN. The time of the gentleman from Ohio Mr. [Traficant] has expired.

(By unanimous consent, Mr. Traficant was allowed to proceed for 2 additional minutes.)

Mr. TRAFICANT. Mr. Chairman, I will continue to yield to the gentleman from Washington.

Mr. DICKS. Mr. Chairman, I think what the gentleman is most concerned about is getting the money released and doing it in the proper way, and we will do everything we can to help him achieve his objective.

Mr. TRAFICANT. I also want the gentleman to help me in advancing the issue of looking at the Totten doctrine, because we will not recruit the types of agents we need to do our job properly.

Mr. DICKS. We will certainly follow up on that issue.

Mr. GOSS. Mr. Chairman, will the gentleman yield?

Mr. TRAFICANT. I yield to the gentleman from Florida.

Mr. GOSS. Mr. Chairman, I thank the distinguished gentleman from Ohio for yielding.

I think the issue is a very important issue and it has been well outlined by the gentleman from Ohio, and I think with the assurance of my colleague from Florida to proceed and the assurance that I have personally given the gentleman to look into the matter in terms of why those payments have not been made, which again I cannot usurp appropriations matters, this is not my area, but we want to make sure that the gentleman's fairness issues are well regarded.

I would point out it was, as the gentleman knows, the U.S. Congress, not the intelligence community, that made the decision for the relief. I think that is entirely appropriate. I think when we go back and look at the Totten decision, and I think it probably is time to look at that, again not my area of jurisdiction, I think we have to ask ourselves questions about the appropriate oversight. I think that is entirely relevant and entirely timely.

Mr. TRAFICANT. Reclaiming my time, Mr. Chairman, I am going to ask Congress to enforce the release of that $20 million to those surviving families of those South Vietnamese commandos who gave their lives to help us out in Southeast Asia.

Mr. DICKS. Mr. Chairman, if the gentleman will continue to yield, as the gentleman well knows, it is in the supplemental appropriations. Congress has appropriated the money. They are working on the regulations.

We just talked to Mr. Hamre's office, the Comptroller of the Department of Defense, and they think they will have the regulations finished by the end of July in order to get the money out.

Mr. TRAFICANT. Reclaiming my time, Mr. Chairman, the money was appropriated last year and I think they should get on with it.

I appreciate the dialog we have had here and I ask for consideration in some other vehicle that comes up.

Mr. Chairman, I ask unanimous consent to withdraw my amendment.

The CHAIRMAN. Is there objection to the request of the gentleman from Ohio?

There was no objection.

The CHAIRMAN. The amendment is withdrawn.