Second-Guessing the Spymasters with a Judicial Role in Espionage Deals

Author:A. John Radsan
Position:Associate Professor of Law, William Mitchell College of Law

I. The Pattern Of An Espionage Deal II. The National Security Paradigm A. The Liberty-Security Trade-Off B. Separation Of Powers C. Instruments For Measuring Judicial Deference III. The Espionage Deal In Historical Context A. Defining Espionage Terms B. Totten Times C. Guong Against The Viet Cong D. The Webster Exception E. Another Set Of Does F. Underlying Policy Issues G. The Supreme Court... (see full summary)


A. John Radsan: Associate Professor of Law, William Mitchell College of Law. Professor Radsan is a former Assistant United States Attorney and a former Assistant General Counsel for the Central Intelligence Agency. He thanks Professors Stephen Dycus, John Cary Sims, and Wayne Logan for their comments on this Article. He also thanks Bradley Endicott, Greg Eich, and Erin Sindberg Porter for their research assistance.

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I The Pattern Of An Espionage Deal

The climax to John Le Carr's Smiley's People occurs when spymaster George Smiley, from British "Circus," convinces his nemesis Karla, from Moscow "Centre," to cross a bridge in Berlin to defect to the West. To intelligence professionals, this is the ultimate recruitment, an espionage deal between senior officers of two elite intelligence services. The crossing also represents Smiley's victory in a broader spy war between Western democracy and authoritarian Communism.1 This crossing is not only the climax to one book, but the end of three books grouped as the "Karla Trilogy." Having peeled back the layers to discover Karla's personal spy network within and on the fringe of Moscow Centre, Smiley uses a secure channel, one of Karla's private messengers, to convey the offer to defect. This offer, as Le Carr observes, is a simple variation of the carrot and the stick. The stick was exposing to Moscow authorities Karla's private spy ring, all of his illegal and unauthorized activities to protect his daughter Alexandra, an exposure that most likely would have led to his "liquidation" and her exile. The carrot came next:

[S]miley offered Karla the same carrot he had offered him more than twenty years before, in Delhi: save your skin, come to us, tell us what you know, and we will make a home for you . . . . Smiley would have promised Karla immunity from prosecution for complicity in the murder of Vladimir . . . . Without question, Smiley also threw in general guarantees about Alexandra's future in the West-treatment, maintenance, and, if necessary, citizenship.2

Those with first-hand knowledge of the espionage business, while admiring Le Carr's mastery in portraying settings and characters, may object to slight inaccuracies in his plot. First, Smiley did not consider leaving Karla as an "agent in place." Once someone has been "turned to the other side," especially a senior official in a rival intelligence service, he is most useful as a continuing source of intelligence and a continuing means of disinformation. A well managed agent, as we learned with British turncoat Kim Philby, can go years without being detected by the counter-intelligence branch of his own service.3 By contrast, a defector has limited value. The rival intelligence service quickly learns of the defection, for instance, as soon as Karla does not Page 1261 show up for work. The service then takes immediate measures to limit the damage, figuratively changing the locks on all doors to which the defector had the keys.

Second, Smiley did not seek approval from headquarters for the package he presented to Karla. The lawyers are nowhere to be seen, and Karla is not asked to sign an acknowledgment or a waiver. Instead, it is a gentleman's agreement, by conduct, between Smiley and Karla; the Russian returns a lighter that he "borrowed" from the Englishman at their last meeting, many years prior in an Indian prison cell when Smiley had attempted but failed to bring Karla to the Western side.4

Fiction, of course, is often tidier than reality. Sometimes a spymaster lies to his agent about their deal. Sometimes a defector is imprisoned while the relevant intelligence service confirms that he is not a double-agent.5Sometimes an agent, once he has become a citizen of his adopted country, and has safely and comfortably settled into a suburban home with a heated garage and heated toilet seats, "remembers" that the spymasters promised him much more than has already been delivered. And from time to time, the spymasters and their agents have honest disagreements.

The purpose of this Article is to analyze what role, if any, American courts should play in resolving financial disputes between spymasters and their secret agents. While espionage may be an esoteric area for the law, some disputes about espionage contracts have made their way into the courts.6 Some cases have been summarily dismissed in the lower courts while others have made it further along in the process.7 Recently, the Supreme Court spoke on this topic in Tenet v. Doe.8 Page 1262

There are heaps of spy novels,9 piles of memoirs, and copious histories about espionage,10 but very few discussions of how American law applies to secret deals for secret services. This Article adds that interesting strand. Without pressing the Le Carr metaphor too far, this Article is a short sequel to the Karla Trilogy, as the possibility of Karla's revenge. Indeed, at the end of Smiley's People, the British spymaster, for a reason that Le Carr does not make explicit, is not satisfied. When one of Smiley's colleagues tells him that he has won, he responds, "Yes. Yes, well I suppose I did."11 Perhaps Smiley, a person who had looked deep into human depravity, knew that something sinister lurked out there for the rest of us. Perhaps Smiley was saddened to see that his misguided American cousins might take things so far that they would put spymasters before public commissions, that they might allow agents to air their grievances in public courts, that they might take activities that were always intended to be "below the line" and put them on public display. If some day, moving from one jurisdiction to another, Karla could serve Smiley with a complaint in an action filed in U.S. district court, requiring him to answer interrogatories and to undergo depositions, then Karla's defection might have been more burden than benefit.

Beyond the spy novel, Part II of this Article suggests a framework for analyzing espionage disputes under American law. To do so, it explores the trade-off between individual liberty and group security and assesses the need for judicial deference to the Executive Branch, common themes in national security studies. While espionage contracts are by themselves worthy of such analysis, the separation of powers framework that this Article presents could be used to review other areas of national security law. Part III assesses some arguments for and against judicial enforcement of espionage contracts, based on a historical survey of cases leading up to the Tenet v. Doe decision. This Part concludes with an analysis of the Supreme Court's recent decision in Tenet v. Doe. Part IV determines how an espionage dispute would be treated under three different strands or keys in national security law. Part V concludes that the Supreme Court and Congress have missed some opportunities for bridging gaps and harmonizing the law in this area. Page 1263

II The National Security Paradigm

Starting on a clean slate, disputes over espionage deals could be dealt with at the basic level of contract. We could focus on familiar concepts such as offer, acceptance, consideration, and sort out agency law beyond sovereign immunity; that is, we could ask whether the U.S. governmental agency had the authority to enter the contract and whether the spymaster was an authorized representative of that agency. At this simple level, the espionage deal does not take on special significance; it is no different from other deals between private contractors and the government.

The espionage deal does take on a special significance, however, when we consider it under certain national security and foreign affairs provisions of the Constitution and under statutes governing intelligence activities. Although the Constitution does not contain an explicit intelligence function, the constitutional support for intelligence activities, including collection and covert action, is buttressed by provisions that are specific about foreign policy and military functions. The President heads the Executive Branch, is vested with executive power, and serves as Commander in Chief.12 Intelligence or the gathering of information about foreign states and foreign trends is a vital component of the President's "sole organ" role to conduct our foreign policy,13 resting in part on the President's specific Article II powers to make treaties and to appoint ambassadors.14 It is more of a stretch, perhaps a contradiction in terms, to connect public diplomacy to an authority for covert action. Regardless, both intelligence collection and covert action share support from specified military powers. Intelligence is vital to our ability to defend the nation and to wage war with success. As such, it falls within the President's power to serve as Commander in Chief.

The constitutional support for intelligence activities is complemented and supplemented by statute. In particular, the National Security Act of 1947 recognizes that intelligence activities are needed to conduct the nation's foreign policy, authorizes the Director of Central Intelligence ("DCI")-acting on behalf of the President-to collect human intelligence and to perform other intelligence activities, and charges the DCI to "protect intelligence sources and methods from unauthorized disclosure."15 As a Page 1264 result, the espionage deal can be shifted to a higher level of debate and into a...

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