Aggrieved with CIA, a former spy goes to court

A cold-war operative asks Supreme Court to restore his pay, raising questions about court's role in intelligence matters.

When a high-ranking diplomat for a Soviet bloc country sought to defect many years ago, US intelligence officials used a classic technique to persuade him to remain in his post and become a spy for America.

In exchange for providing useful intelligence, he and his wife were promised US citizenship, new identities in America, and financial aid for the rest of their lives.

Now, the former diplomat says he held up his end of the bargain, risking his life to help protect US security. But with the cold war over, the Central Intelligence Agency cut off his $27,000 annual stipend and wants nothing more to do with him.

Tuesday, the former spy's case arrives at the US Supreme Court where the justices are to decide whether agreements made during secret intelligence operations may be scrutinized and enforced by federal judges. The case, Tenet v. John Doe and Jane Doe (both pseudonyms), is important because it raises potentially far-reaching questions about the separation of powers. It comes as the Bush administration continues to attempt to carve out areas of exclusive presidential power - particularly in waging the war on terror.

"[Those at the CIA] can't police themselves. History has shown that," says Mark Zaid, a Washington, D.C., lawyer who specializes in litigation involving intelligence agencies. "It is not isolated to the CIA," he says. "That is the reason the Constitution and the framers set up the three-branch system of government."

In the spy case, government lawyers argue that secret agreements between the CIA and clandestine operatives must be off limits to the prying gaze of federal judges. Any disputes over secret arrangements should be ironed out within the intelligence community to maintain confidentiality and protect national security, administration lawyers say.

Steven Hale, a Seattle lawyer representing the former diplomat and his wife, disagrees. "The Executive attempts in this case to eliminate the judiciary's vital constitutional role," he says in his brief.

The dispute arose after the diplomat, now in the United States, lost his job in a Seattle bank following a merger. Unable to find new work using his false ID and a résumé fabricated by the CIA, he asked the CIA for help, including restoring the $27,000 annual stipend he received prior to his job at the bank.

According to court documents, the CIA refused, saying that he had already received full compensation commensurate with the value of his spying.

After repeated attempts to resolve the issue quietly, Mr. Hale filed suit in 1997, asking a federal judge to order the CIA to conduct a "procedurally fair" internal hearing into the case.

The issue arises six months after the Supreme Court rejected government efforts to block judicial oversight of enemy combatants being held both in the US and at Guantánamo Bay, Cuba. "A state of war is not a blank check for the president when it comes to the rights of the nation's citizens," wrote Justice Sandra Day O'Connor in the decision Hamdi v. Rumsfeld.

But it remains unclear to what extent a majority of justices are prepared to expand judicial oversight into an area that has long been shrouded in near total secrecy within the CIA. To decide the issue, the justices must examine the vibrancy of a 130-year-old Supreme Court precedent involving the case of a Civil War era spy.

In July 1861, William Lloyd agreed to provide President Lincoln with intelligence about the location and size of Confederate troops, as well as plans for forts and fortifications in the South. In exchange, he was to receive $200 per month.

Mr. Lloyd acted as a spy for the Union throughout the war, but he was reimbursed only for his expenses. He never received the $200 per month.

It is unclear whether the president, nicknamed Honest Abe, intended to stiff his secret agent, or whether Lincoln's assassination was responsible for blocking the promised payments. Nonetheless, the Supreme Court ruled in 1875 that Lloyd could not bring a suit in federal court.

"The secrecy which such contracts impose precludes any action for their enforcement," Justice Stephen Field wrote for the court.

The high court went one step further, stating as a "general principle" that federal courts are barred from hearing disputes involving secret contracts between individuals and the government for espionage and other covert operations.

At issue in the Doe case is whether the diplomat's arrangement amounts to a contract. Government lawyers say it is a contract and is thus barred from court.

Hale sidesteps the contract issue, arguing instead that the CIA is violating the Does' right to due process by refusing to grant a fair hearing on the stipend issue. A federal appeals court agreed with Hale, ruling that while federal judges are barred from examining covert contracts, they are not prevented from enforcing constitutional protections against arbitrary treatment of citizens by a government agency.