[Congressional Record Volume 143, Number 17 (Tuesday, February 11, 1997)]
[Extensions of Remarks]
[Pages E209-E210]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




[[Page E209]]



LEGISLATION ESTABLISHING SPECIAL JUDICIAL PANEL TO SCREEN INTELLIGENCE 
              CASES INVOLVING BREACH OF CONTRACT DISPUTES

                                 ______
                                 

                      HON. JAMES A. TRAFICANT, JR.

                                of ohio

                    in the house of representatives

                       Tuesday, February 11, 1997

  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 
U.S. intelligence agencies and individuals involved in espionage on 
behalf of the United States should go on trial. The legislation directs 
the Chief Justice 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.
  The goal of the bill is to allow individuals who have a legitimate 
claim against the U.S. Government regarding a secret service contract 
to have their day in court. Currently, these types of cases are barred 
from even going to trial by the Totten doctrine, which bars the 
judiciary from adjudicating disputes that arise out of secret 
Government contracts which involve the performance of secret service.
  The Totten doctrine is based on the 1876 Supreme Court case of Totten 
verses 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. Both 
     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 years have affirmed the Totten doctrine 
as it applies to breach of contract disputes arising from espionage 
services performed pursuant to a secret contract. Basically, the Totten 
doctrine prevents individuals who have performed espionage services for 
the United States and have legitimate claims against the Government 
from even having their claims heard in a U.S. court. In a paper 
published in the Spring, 1990 issue of the Suffolk Transnational Law 
Journal, Theodore Francis Riordan noted that ``[W]hen 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.''
  While, on the whole, U.S. intelligence agencies do their best to 
fulfill commitments made to individuals who perform services on their 
behalf, there are instances in which, for whatever reason, U.S. 
intelligence agencies have not fulfilled its commitments.
  For example, during the Vietnam war the Pentagon and the CIA jointly 
ran an operation over a 7 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 leaks and intelligence 
penetrations by the North Vietnamese, most of the commandos were 
captured almost immediately. Many 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 United 
States 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. Last fall, the CIA decided to provide compensation to the 
commandos.
  Mr. Speaker, how many other cases are there in which U.S. 
intelligence agencies have acted in a similar manner but not settled 
out of court? I find it outraged than an individual who risked his or 
her life for the United States would not even have the opportunity to 
have his or her grievance heard in a court of law because of Totten.
  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 any unauthorized leaks of information that would 
compromise U.S. intelligence sources and methods. That is why my 
legislation 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 
at home and abroad. 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.

  Finally, because there may be a number of cases that were never even 
contested because of the Totten doctrine, the bill waives the statute 
of limitations for any claims arising on or after December 1, 1976 and 
filed within 2 years of enactment of the bill into law.
  Mr. Speaker, this is a responsible piece of legislation that affords 
both U.S. citizens and foreign nationals who perform intelligence 
services for the United States of some assurance that they have some 
recourse if the Government does not honor its commitments. The bill 
also includes enough safeguards to protect national security and the 
safety of U.S. intelligence sources. I want to emphasize that the bill 
would not automatically provide compensation to anyone. It simply would 
allow legitimate breach of contract cases to go to trial.
  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 versus 
Marchetti, the Fourth Circuit took the position that, basically, 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. I would point out, Mr. Speaker, that 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.
  The truth is, the U.S. intelligence community has become too 
insulated from the regulations and laws that other Federal agencies 
must abide by. The Totten doctrine has outlived its usefulness. There 
is no legitimate national security reason why an individual who was 
promised certain things in a contract with the U.S. Government--even a 
contract for the performance of secret services--should not be able to 
file a claim for breach of contract, and have that claim objectively 
reviewed based on the merits of the claim. That's all my legislation 
would do.
  The bill would make the intelligence community more accountable to 
the public--without in any way compromising national security or 
intelligence sources and methods. It is a well-reasoned, fair bill. 
Most importantly, it's the right thing to do. I urge all of my 
colleagues to support the bill, the text of which follows:

                                H.R. --

       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

[[Page E210]]

     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--
       (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)).

     SEC. 2. APPLICABILITY.

       (a) In General.--Section 1 applies to claims arising on or 
     after December 1, 1976.
       (b) Waiver of Statute of Limitations.--With respect to any 
     claim arising before the enactment of this Act with 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.

                          ____________________