[Congressional Record (Bound Edition), Volume 145 (1999), Part 5]
[Extensions of Remarks]
[Pages 7335-7336]
[From the U.S. Government Publishing Office, www.gpo.gov]




        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.

[[Page 7336]]

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.
  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.

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