Israeli Who Spied for CIA Loses Breach of Contract Suit
Likud politician gave CIA information on Pollard, nuclear weapons, and use of US funds by Israel
IMRA - February 27, 2001
IMRA NOTE: This front-page story which appeared today in the prestigious New York Law Journal (02/27/01), levels the playing field and makes it easier for the Government of Israel to seek the immediate release of Jonathan Pollard.
Michael A. Riccardi - New York Law Journal - February 27, 2001
A former Israeli politician who provided intelligence for the U.S. Central Intelligence Agency cannot use the courts to enforce promises of pension, health benefits and automatic American citizenship made by the espionage agency, an Eastern District has ruled.
Under a 125-year-old precedent, U.S. District Judge I. Leo Glasser said, secret information agreements to which a United States government agency is a party cannot be enforced in the courts for public policy reasons. Judge Glasser explained that the need for confidentiality in the exchange of secret information justifies a broad exclusion of these cases from the courts.
In Kielczynski v. United States Central Intelligence Agency, 00 CV 539, the plaintiff, who had been a politician in the conservative Likud Party, said he was entitled to a stay of deportation proceedings based on a guarantee made by the CIA when he agreed to work as a spy for the United States. Andrzej Kielczynski, who also used the name Joseph Barak, also said that he was entitled to a monthly payment for his retirement and health benefits, claiming that he suffered the onset of diabetes as the result of stress induced by his work for the CIA.
Mr. Kielczynski said that he provided intelligence to the U.S. government from 1985 through 1991, including information on the espionage activities of Jonathan Pollard, a U.S. citizen who spied for Israel. He also said he provided information on the placement of Israeli nuclear weapons and the Israeli government's use of financial aid sent by the United States.
The agency, Mr. Kielczynski alleged, reneged on the agreements it made in 1985 when it recruited him. In 1991, when he became too ill to work anymore, he said that he was coerced into signing a document recognizing that he was paid $50,000 for the treatment of his disease.
Furthermore, in 1998, when the plaintiff sought political asylum in the United States, he was placed in deportation proceedings.
The federal government asked Judge Glasser to dismiss the lawsuit on the pleadings, arguing that the secrecy required in the work of the CIA precluded any breach of contract lawsuit.
Generally, when the federal government enters into a contract with a private individual, it waives its sovereign immunity and can be sued for breach of the agreement.
But under Totten v. United States, 92 U.S. 105 (1875), Mr. Kielczynski's action is barred because its litigation could jeopardize confidential information.
Moreover, the plaintiff has made no allegations of unconstitutional action or deprivation of due process by the CIA in its alleged termination of the contract, Judge Glasser said. The court, in dicta, said that the Totten doctrine may be unfair or outdated. But there is no question that it applies in Mr. Kielczynski's case, Judge Glasser said.
"As sympathetic as the court may be for this class of persons [foreign nationals who are former spies] who, as a result of Totten, are left with no way of enforcing the CIA's purported guarantees of financial and personal security," Judge Glasser wrote, "the fact remains that Totten is binding law."
The court added that Mr. Kielczynski cannot take the position that an unlawful termination of a contract is the same as deprivation of a property right without due process.
When alleged due process rights "are alleged to emerge directly from a contract, the consideration of which is foreclosed by law," the case must be dismissed, the court concluded.
Mr. Kielczynski's attorney was Janusz Andrzejewski of Manhattan. Assistant U.S. Attorney Sandra L. Levy handled the case for the federal government.
The full decision in the case will be published in the New York Law Journal, Thursday March 1, 2001.