AGENTS WHO SERVED AMERICA SHOULD HAVE THEIR DAY IN COURT
______
HON. JAMES A. TRAFICANT, JR.
of ohio
in the house of representatives
Thursday, April 22, 1999
Mr. TRAFICANT. Mr. Speaker, today I am introducing legislation to
mandate the establishment of a special federal judicial panel to
determine whether cases involving breach of contract disputes between
the U.S. Government and U.S. intelligence operatives should go to
trial. The bill is identical to legislation I introduced in the last
Congress.
The legislation directs the Chief Justice of the U.S. Supreme Court
to assign three federal circuit court judges, senior federal judges, or
retired justices to a division of the U.S. 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 an appropriate
U.S. court for compensation for services performed for the U.S.
pursuant to a secret government contract may be tried in court. The
bill provides that the panel may not determine that the case cannot be
heard solely on the basis of the nature of the services provided under
the contract.
Currently, the Totten doctrine bars these types of cases from even
going to trial. The Totten doctrine is based on the 1876 Supreme Court
case of Totten versus United States. The case involved the estate of an
individual who performed secret services for President Lincoln during
the Civil War. The court dismissed the plaintiff's postwar suit for
breach of contract, stating, in part:
The service stipulated by the contract was a secret
service; the information sought was to be obtained
clandestinely, and was to be communicated privately; the
employment and the service were to be equally concealed.
Bathe employer and agent must have understood that the lips
of the other were to be for ever sealed respecting the
relation of either to the matter . . . It may be stated as a
general principle, that public policy forbids the maintenance
of 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, and respecting which it will
not allow the confidence to be violated.
Other court rulings over the past 120 years have affirmed the Totten
doctrine as it applies to breach of contract disputes arising form
espionage services performed pursuant to a secret contract. Mr.
Speaker, as a matter of policy, the Totten doctrine is unfair, unjust
and un-American.
For the most part, U.S. intelligence agencies do a good job of
fulfilling commitments made to U.S. intelligence operatives. However,
there have been some disturbing lapses.
During the Vietnam War the Pentagon and the CIA jointly ran an
operation over a seven-year period in which some 450 South Vietnamese
commandos were sent into North Vietnam on various espionage and spy
missions. The CIA promised each commando that, in the event they were
captured, they would be rescued and their families would receive
lifetime stipends. Due to intelligence penetrations by the North
Vietnamese, most of the commandos were captured. No rescue attempts
were ever made. Many of the commandos were tortured and some were
killed by the North Vietnamese. Beginning in 1962, CIA officers began
crossing the names of captured commandos off the pay rosters and
telling their family members that they were dead. Many of the commandos
survived the war. After varying periods of time they were set free by
the Vietnamese government. Two hundred of the commandos now living in
the U.S. filed a lawsuit last year asking that all living commandos be
paid $2,000 a year for every year they served in prison--an estimated
$11 million. In 1996 the CIA decided to provide compensation to the
commandos. Unfortunately, even after this decision was made, the CIA
continued to invoke the Totten doctrine to avoid payment.
I have encountered numerous cases in which the CIA has reneged on
commitments CIA agents made to foreign nationals who put their lives on
the line to provide valuable intelligence to the United States. Absent
Congressional action, the Totten doctrine allows the CIA and other
intelligence agencies to ignore legitimate cases, and have these cases
summarily dismissed without a trial.
In a paper published in the Spring, 1990 issue of the Suffolk
Transnational Law Journal, Theodore Francis Riordan noted that ``when a
court invokes Totten to dismiss a lawsuit, it is merely enforcing the
contract's implied covenant of secrecy, rather than invoking some
national security ground.'' The bottom line: the U.S. government can,
and has, invoked the Totten doctrine to avoid solemn commitments made
to U.S. intelligence operatives.
Existing federal statutes give the Director of Central Intelligence
the authority to protect intelligence sources and methods from
unauthorized disclosure. I understand the importance to national
security of preventing unauthorized leaks of information that could
compromise U.S. intelligence sources and methods. That is why my bill
directs the special judicial panel to take into consideration whether
the information that would be disclosed in adjudicating an action would
do serious damage to national security or would compromise the safety
and security of U.S. intelligence sources. In addition, the bill
provides that if the panel determines that a particular case can go to
trial, it may prescribe steps that the court in which the case is to be
heard shall take to protect national security and intelligence sources
and methods, including holding the proceedings ``in camera.''
Supporters of the U.S. intelligence community have criticized court
involvement in intelligence cases by noting that most federal judges do
not have the expertise, knowledge and background to effectively
adjudicate intelligence cases. In fact, in the United States verse
Marchetti, the Fourth Circuit took the position that judges are too
ill-informed and inexpert to appraise the magnitude of national
security harm that could occur should certain classified information be
publicized. I must respectfully and strenuously disagree with this type
of reasoning. Federal judges routinely adjudicate highly complex tax
cases, as well as other tort cases involving highly technical issues,
such as environmental damage caused by toxic chemicals. It's absurd to
assert that judges can master the complexities of the tax code and
environmental law, but somehow be unable to understand and rule on
intelligence matters.
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The U.S. intelligence community has become too insulated from the
regulations and laws that apply to all other federal agencies. Mr.
Speaker, the Totten doctrine has outlived its usefulness. There is no
legitimate national security reason why U.S. intelligence operatives
should not be able to file a claim for beach of contract, and have the
claim objectively reviewed.
I urge all Members to support my legislation. It's the right thing to
do; it's the American thing to do.
____________________
1st Session
H. R. 1548
April 22, 1999
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. ASSIGNMENT OF JUDGES TO 3-JUDGE DIVISION.
(a) ASSIGNMENT OF JUDGES- The Chief Justice of the United States shall assign 3 circuit court 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 to 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- Assignment 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--
(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)).
(a) IN GENERAL- Section 1 applies to claims arising on or after January 1, 1974.
(b) 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.