ATTORNEY CLIENT PRIVILEGED MATERIAL
Originator: CIA
Document date: 06/16/1989
Document type: PAPER - TEXTUAL DOCUMENT

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ATTORNEY CLIENT PRIVILEGED MATERIAL

16 June 1989

ITEMS OF MAJOR INTEREST - 9 - 16 June 1989

On 10 May 1989 in the FOIA case Knight v. U.S. Central

Intelligence Agency,

the Fifth Circuit Court of Appeals in a

published opinion affirmed the district court's award of

summary judgment for the Agency in declaring that the CIA need

not disclose to the plaintiff certain records he had requested

regarding the sinking of the Green-peace ship, the "Rainbow

Warrior." As a result of the Court of Appeals opinion, which

states that courts should not second-guess determination of the

DCI in FOIA matters involving the national security, the

plaintiff has petitioned the Court of Appeals to rehear his

appeal.

Prior to his

rotation to the Iran-Contra Task Force,

Fred Manget of OGC's Litigation Division handled this case.

Upon Fred's departure, Rob Roth, also of OGC's Litigation

Division is working with the U.S. Attorney's Office in

responding to this most recent development.

Secrecy Agreement Litigation.

While awaiting docketing of

the AFSA case in the District Court (which is on remand

. from

the Supreme Court), we received an offer to enter into

negotiations for possible settlement

of all three cases which

take issue with the Executive Branch's standard nondisclosure

agreements.

The institutional and congressional plaintiffs

offered to

dismiss their remaining claims if the Executive

Branch parties would:

(1) provide personal notice to former

employees to inform them that the term "classifiable" has been

deleted from the SF 189 and the F 4193; (2) define employees'

obligations under the nondisclosure agreements with respect to

information that is not marked "classified"; (3) clarify the

language of the prepublication review clause (paragraph 4 of

Forms 4193 and 4355); and (4) agree that employees should be

obligated not to disclose information only during a thirty day

review period following the employees submission of the

material to the Agency for prepublication review. (U)

After reviewing the settlement offer and concluding that

many of plaintiffs' issues for negotiation were not raised in

the original lawsuit, we

advised DoJ that the only issue we

would be interested in discussing prior to returning to Judge

Gasch's courtroom would be the possibility of giving former

erployees constructive (vice personal) notice of the deletion

of the tern classifiable. Director of ISOO, Steve Garfinkel

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(another named defendant) was also in agreement with this

posture.

DOJ agreed to convey our response to the plaintiffs

and will simultaneously file a Motion to Remand the other two

secrecy agreement cases (NEFE and AFGE) --currently stayed at

the Court of Appeals---back to the District Court for

consideration with the AFSA case in light of the Supreme

Court's action.

The strategy to this move is to have the

District Court reconsider all three and thereby, send to the

Court of Appeals, at a later date, more narrowly focused

issues.

Phyllis McNeil of the Litigation Division is handling

these

cases.

(U)

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ATTORNEY CLIENT PRIVILEGED MATERIAL

9 June 1989

ITEMS OF MAJOR INTEREST -- 2 - 9 June 1989

Erigard v. United States, 862 F. 2d 201 (9th Cir. 1988)

Cert. denied, _ U.S. — (1989). As described in previous

items, this suit was brought by former investors in convicted

swindler Ronald Rewald's investment firm.

The plaintiffs

alleged that CIA negligently allowed Rewald to defraud them,

and thus the United States should be liable for the lost

investment under the Federal Tort Claims Act (FTCA) • The case

was dismissed by the district court and the dismissal was

affirmed by the Court of Appeals for the Ninth Circuit.

On

5 June 1989, the Supreme Court denied the plaintiff's petition

for a writ of certiorari, thus ending the case favorably for

CIA.

With this final appellate step in the Frigard case, the

likelihood of any further cases being

successfully brought

under the FTCA by disgruntled Rewald investors is small.

Fred

Manget, formerly of the Litigation Division, has acted of

counsel to the Department of Justice on all of the

Rewald-related cases.

(U)

Fitzgibbon FOIA Litigation. Decisions recently were issued

in two cases challenging

• the extent of the DCI's authority to

protect sources and

methods. Plaintiff sought documents

relating to the disappearance of a critic of the Trujillo

regime in the Dominican Republic, and in earlier rulings Judge

Harold Greene ordered the release of various ClA documents, or

portions.

CIA appealed, but the cases were stayed to await the

outcome of a ruling by the Supreme Court in CIA y. Sims.

Following Sims the Fitzgibbon cases were remanded for

reconsideration in light of the decision recognizing the broad

authority provided in the National Security Act to protect

souIces

and methods. (U)

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The recent

rulings in part uphold CIA's position. The

court reversed its earlier ruling that CIA release material

where its sources were dead, where confidentiality was not

needed at the time the information was obtained from the source

or where the information was innocuous or outdated. The court

also upheld CIA's

ability to protect information concerning

potential and unwitting sources.

However, the court was not

convinced

that contacts with domestic officials were entitled

to protection in furtherance of CIA's mandate to collect

foreign intelligence.

The court also ordered the disclosure of

information related to a CIA station where the information

previously had been released by the U.S. Senate.

The court's

ruling on these two points is in direct conflict with other

rules in the D.C. Circuit, and we expect to appeal.

W. George

Jameson, Chief, Litigation Division, is the attorney handling

this case.

(S)

Domingo v, Marcos.

In this case against the Philippine

Government, plaintiffs have sought

discovery from the U.s. to

prove allegations that

former President Marcos sent agents into

the U.s. to suppress political opposition. Recently, District

Judge Rothstein held

an in samera, ex parte session in Seattle

to question CIA about the rationale behind the DCI's formal

claim of the state secrets privilege for information in CIA's

files.

As former C/EA Division, Norbert Garrett represented

CIA and was accompanied by George Jameson (C/Litigation

Division/OGC) .

Mr. Garrett explained why the disclosure of

CIA's records would reveal and, thereby, harm source

relationships, methods of collection, and foreign relations

interests.

The Under Secretary of

State for Political Affairs

provided CIA a letter for the Judge's review to support

Mr. Garrett's testimony about the impact of disclosures on

U.S.-Philippine relations. (S)

Judge Rothstein concluded that many of CIA's documents need

not be disclosed, but seeks to try to "balance" the interests

of plaintiffs in obtaining the documents against the United

concluded not mate on to

to protect them.

State, FBI, and DOD documents

also are at issue, and the Government position is that its

sensitive materials -- which do not prove plaintiffs' case --

should be protected despite plaintiffs' alleged need.

In other

words, a valid claim of privilege is absolute.

Phyllis McNeil

of the Litigation Division is the attorney handling this case.

Dedt ve Che, Civil No. 89-0161 (D.C. for the Middle

District of Pennsylvania). On 30 May 1989, Judge Rambo

dismissed this complaint

against the Agency for failure to

state a cause of action, and certified that any appeal taken

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from that dismissal "will be deemed frivolous and not taken in

good faith."

The plaintiff had alleged, without stating a

basis

for the cause of action, that the CIA had participated in

an unspecified manner in the implantation of a monitoring

device in his brain.

Judge Rambo previously ordered the

plaintiff to either file a more definite complaint or face

dismissal. The order dismissing the complaint noted that "if

plaintiff truly believes he has some foreign object placed in

his head, nothing is preventing him from having it removed

himself."

Bob Caudle of Litigation Division was the attorney

handling this case:

New Litigations

Beverley Burke Bomstein v. CIA. This administrative claim

brought pursuant to the Federal Tort Claims Act seeks one

million dollars in compensation for injuries allegedly suffered

by Mrs. Bomstein during three

admissions

to the Allan Memorial

Institute, a psychiatric hospital located in Montreal, between

1958 and 1960.

Mxs. Bomstein alleges. that she was subjected to

"unethical and inhuman experimental treatments" from DI. Ewen

Cameron and others as part of the "mind-control experiments"

financed by the CIA. Mrs. Bomstein relies upon the recent

settlement of the lilikow. et al. v. United States litigation

as the basis for her claim that the CIA is liable for her

injuries.

Mrs. Bomstein claims that she was subjected to the

same treatment and suffered the same injuries as the nine

plaintiffs in Orlikow but that she was unable to take legal

action earlier because the treatments caused amnesia and memory

lapses.

Kathleen McGinn of the Litigation Division is handling

this case.

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