### IX. EFFORTS AT SETTLEMENT WHILE DISCOVERY PLODS ON

> Simultaneous with our pretrial efforts to document our case, we continued to seek resolution of the suit short of trial through a settlement. An obvious potential ally was the Canadian government. After all, our clients were Canadian citizens and there had been some expressions of displeasure in Ottawa when the story of the CIA involvement in Montreal first emerged in the late 1970s. Since then, even after we had commenced legal action for the victims, there had been nothing in the way of Canadian Government support for its citizens.

> In an effort to enlist the aid of our clients' own government, we contacted officials at the Canadian Embassy in Washington. But, after several months of talking, we were unable to force any kind of public support from the Government of Canadian Prime Minister Brian Mulroney. In Washington there was a quiet exchange of Notes which, we were told, is the way diplomats speak to one another. This exchange was secret and did nothing to help our case. There was no public support by Canada for its own citizens that might generate real pressure to compensate our clients.

> When the Note route failed we asked, again through the proper diplomatic channels, that the subject of the our clients case against the CIA be included on the agenda of an upcoming meeting between Canadian Foreign Minister Joe Clark and U.S. Secretary of State George Schultz. We were assured that the matter would be raised forcefully. But once again, our clients' own government was too craven to do anything in public. Clark expressed his concerns in secret meetings and Schultz promised to look into the matter. Unwilling to make waves, Clark passively acquiesced to this brush-off.

> Finally, we were surprised that the Canadian Ambassador in Washington, Alan Gotlieb, had not supported our case and used his offices to exert some pressure for settlement on the CIA through the U.S. Department of State. Before coming to Washington Gotlieb had been a senior official in the Canadian Foreign Ministry and had written to David Orlikow assuring him of his Government's support in seeking redress for the CIA's Montreal experiments. And since coming to Washington, Gotlieb and his wife Sondra, who wrote a regular column for the Washington Post, had become the most visible and prominent members of the diplomatic corps. If there was any Canadian in Washington who should have been willing and able to help, it was Alan Gotlieb.

> When our efforts to secure help through channels failed to produce anything, we requested a personal meeting with Ambassador Gotlieb. At that time we delivered a carefully prepared briefing paper to the Ambassador, which described the case and expressed dissatisfaction on our clients' behalf at their government's silence. Gotlieb's response came as a complete surprise to us. He was openly hostile and expressed anger that we had the temerity to criticize his government's inaction or to ask him for anything. Although we had prepared a careful and detailed paper and had exercised the utmost restraint in discussing our clients' case and the lack of support by Canada, Gotlieb's emotional response did not address the plight of his citizens, but only attacked us for engaging in such a "confrontation" with him. By the time we were ushered out of the Embassy, it was clear that, for some reason, no support would be forthcoming from that quarter.

> Felix Frankfurter had once admonished his law clerk, Joseph Rauh, that reading the society pages was the only way to really know what is going on in Washington, a city where social machinations are an integral part of political life. Sure enough, the reason for Gotlieb's hostility to his own countrymen's plight was revealed a few months later in the "Personalities" column of the Washington Post -- Gotlieb had entertained Richard Helms, the former CIA Director and the prime architect of MKULTRA, at the Canadian Embassy and had his staff release the guest list, including Helms' name, to the Post.38 A clearer message could not have been sent. Canada was more concerned with cultivating Helms than it was with helping its own citizens.

> We did, however, have one strong and able ally in the Canadian Embassy, Gotlieb's Political Officer, Jeremy Kinsman. Although the Ambassador was openly hostile to our case, Kinsman was very active in presenting our clients' case to the U.S. State Department and in attempting to secure some measure of cooperation and support from the Canadian bureaucracy in Ottawa. Sad to report, after some months Kinsman was removed from his office and sent back to Ottawa. Whether his support for the case was the reason, we have yet to learn.

> The other potential source of pressure for a settlement was the public, and the only way to reach the public is through the news media. There is a sneering disdain among lawyers who represent entrenched interests for their colleagues who "try their case in the press." In public interest cases generally, there are major justifications for seeking help from the media in publicizing the fight. Such cases by their very nature have public policy implications and the public should be aware of them. And in our case in particular the chief danger of publicity -- tainting the minds of all prospective jurors so that a fair trial is impossible -- was not even a factor. Under the Tort Claims Act the case is heard by a Judge alone. In these circumstances, we believed that there was a positive obligation to seek help from the media.

> In January of 1985, the Canadian Broadcasting Corporation's investigative journal, "The Fifth Estate," aired a lengthy segment on our case. The response in Canada was immediate and nationwide, as editorials from Toronto to Vancouver appeared chastising the Canadian Government for its weak-kneed acquiescence to the CIA's Montreal incursion. In response to heated questioning on the floor of Parliament a few days later, then Canadian Foreign Minister, Alan MacEachen, even threatened publicly to take the case to the International Court of Justice at the Hague, if a resolution was not forthcoming. Ambassador's Gotlieb's ties to Helms no doubt contributed to the demise of this suggestion.

> Second in impact only to The Fifth Estate was the Washington correspondent for the Canadian Press wire service, Juliet O'Neal. Because CP is a nationwide service in Canada that is affiliated with the Associated Press in the United States, Julie O'Neal's continuing support for the Canadian's fight and the brilliant pieces she filed regularly as the case worked its way through the court proceedings sustained what public support we had won through the Fifth Estate.

> Julie O'Neal's last days in Washington were not happy ones. She had doubtless earned the antipathy of Gotlieb by her honest and forthright reporting on our case, but she was ostracized by the Ambassador and his staff, when she reported that in a fit of pique just before an Embassy function Gotlieb's wife had slapped the face of her Secretary (the incident, promptly dubbed "the slap flap," for a time threatened Gotlieb's continued career in Washington). Julie O'Neal was never invited to another official Embassy function -- an impossible situation for a correspondent assigned to cover Washington for a Canadian wire service. O'Neal returned to Ottawa while the case was still pending.

> As successful as we were in obtaining coverage in Canada, it had no discernable effect on the Agency. Indeed, when "60 Minutes" aired a 1985 segment on the case, there was actually less reaction than "The Fifth Estate" program had generated. Part of the problem was a general lack of interest in the United States about Canada and Canadians. Time and again, we would hear, "but that was in Montreal, the CIA doesn't do those things in the U.S." It is difficult to marshall public support and bring pressure to bear in the face of such parochial indifference. Without broad support in the U.S. and pressure exerted on the home front we concluded that movement by the CIA was unlikely, for at bottom, the CIA simply was not too concerned about what Canadians thought of it.

> In short, the Canadian Government would not try to budge the CIA and Canadian public opinion had no influence over the Agency. As we shall describe, there was entrenched opposition to any settlement by the Operations Directorate within the CIA. Unless we could find some way around the cloak-and-dagger crowd, settlement would remain a pipe dream.

> __________
> 38 The event was a reception for former Reagan White House Chief of Staff Michael Deaver, who was being hired to represent Canada as a Washington lobbyist. Deaver was later convicted of influence peddling in connection with his lobbying activities. Ambassador Gotlieb and the Canadian Embassy invoked diplomatic immunity and refused to cooperate with the Special Prosecutor who investigated Deaver's conduct.

> ### X. GOVERNMENT STALLING TACTICS ABETTED BY A SLOW JUDGE

> A key element to the CIA's strategy was delay and attrition -- not only in the expectation that the aged victims would die off, but also with the knowledge that their lead counsel, Joseph Rauh was in his 70s. 39 What made this scenario all the more difficult was the fact that the CIA's litigation by attrition strategy was effective in part because our case had been assigned toa notoriously slow Judge. 40 Aware of his reputation, the Agency missed no opportunity to file delaying motions or to resist our discovery efforts, such as the naked refusal to permit the depositions of Hulse and Knause. By exploiting the sometimes glacial pace of the Court in deciding even the most routine of motions, the CIA was able to prolong the discovery period until instead of months, it had consumed years while our elderly clients became more and more frail and infirm.

> In 1985, to finally obtain rulings on the pending discovery matters and to clear the way for final pretrial motions, we were forced once again to write a letter to the Administrator of the U.S. Courts, seeking the intervention by the Judge's superiors. All of the risks we had taken in writing the first time were more than doubled by this second recourse to the Administrator. Whatever the risks, we had no choice. Fortunately, the letter worked and rulings were once again issued by the Court.

> But the CIA's attrition strategy worked all too well. Shortly after we completed our brief on the CIA's motion for summary judgment in the Fall of 1986, failing health forced the hospitalization and retirement of Joseph Rauh. While hospitalized in January of 1987, a near-fatal heart attack and other internal complications sidelined our most senior and seasoned counsel for many months as Rauh made a slow and painful recovery.

> __________
> 39 One plaintiff, Florence Langleben, died in January of 1986 in the midst of the CIA's stalling. Her widower, Moe Langleben, was substituted as a plaintiff.

> 40 Lawyers are reluctant to criticize publicly a sitting Judge because they may jeopardize their clients' cases before him. Not only was our Judge's slowness common knowledge among members of the bar, but his dilatory conduct was so egregious that it was even reported at length in a featured Washington Post article. Recounting delays of four years and more in prisoner rights and discrimination cases, the Post reported at length on "what has become a vexing problem for the federal court in the District of Columbia," our Judge's "mounting backlog of cases and the years-long delays that mark his handling of civil cases." In addition, the Post publicly confirmed that he "consistently has the worst record for moving cases forward" and "regularly lists more than a dozen cases that have been awaiting a decision for longer than six months" in quarterly reports to the Administrative Office of the U.S. Courts, while about half of the 15 active federal district court judges in Washington usually reported no such old cases and no other judge had more than six. D.C. Judge Mounting Backlog Poses Court Problem, Washington Post, Jan. 3, 1988 at D1, D4.

> ### XI. CIA PRESSURE ON THE CANADIAN GOVERNMENT

> As bad as the delays were, the CIA's effectiveness in converting our potential ally, the Canadian Government, into an active and hostile opponent was even more damaging. Not only did the Agency prevent the disclosure of the evidence Canada had concerning the late 1970s CIA apologies in Ottawa, but joined by our State Department it also launched a public counterattack on the Canadian Government for having the gall to question the propriety of the CIA activities in Montreal. In press briefings, interviews and even in Court pleadings, the CIA began hammering away at one theme -- Canada funded Cameron, too. Legally, this was irrelevant, for nothing Canada had done could excuse the CIA for financing brainwashing experiments in Montreal. But politically, it was devastating. As one U.S. Attorney told a Canadian reporter in Washington, "We're going to wrap the Canadian Government financing of Cameron right around their necks."

> This steady counterattack left the Canadian Government completely cowed, apparently a fairly easy thing for the U.S. to accomplish. To turn off the public heat for supporting our case, the Mulroney Government commissioned an "independent study" of the matter by a former Tory M.P., John Cooper. 41 The result was neither independent nor a study, but was I nstead a several hundred page brief, which concluded not only that Canada was blameless, but that the CIA involvement with Cameron was "a red herring." 42

> Moreover, although this document was called the "Cooper Report," it had, in fact, been compiled and written by Canadian Justice Department lawyers -- whose job it was to defend Canada against claims of liability based on its involvement with Cameron. A more clear conflict of interest is difficult to imagine, and one can only wonder why no Canadian Bar disciplinary committee has investigated the lawyers who did it.

> The flaws with the "Cooper Report" did not end with bias, they extended to irresponsible assertions that Cameron had done nothing wrong. So eager were the Canadian Justice Department lawyers to foreclose suits against their Government that, without interviewing any of our clients or even reviewing the medical records which documented their injuries, their report announced that there was probably little if any lasting harm done to Cameron's victims. Finally, although the assignment given to Cooper was to evaluate Canadian Government responsibility, his report went much further, reproducing the CIA's principal defenses, now as the "independent" conclusions of an official Canadian Government investigation. The Canadian Government's "Cooper Report" was, in short, a complete whitewash.

> What once had appeared to be our strongest potential ally, threatening even to take the U.S. to the International Court of Justice at the Hague, now sought to exonerate the CIA in every conceivable way possible. Indeed the Canadian Government did such a good job for the Agency that the "Cooper Report" became the first exhibit in CIA's final effort to defeat our case through a motion for summary judgment. In addition, the same psychiatrists who the Canadian Government had retained to ratify the Cooper whitewash were promptly identified by the CIA as its expert witnesses in our case. Canada had completed the legwork that an associate in a good law firm usually does for a senior partner. The net impact of this was to delay further the trial date in our case for at least a year.

> There was only one decent and honorable suggestion in the hundreds of pages that comprised the Cooper Report, and that was buried in the last of over fifty appendices. Hidden there was a recommendation that an "ex gratia" payment of $ 100,000 be made to each of our clients by the Canadian Government. Because this recommendation was obscurely whispered in a non-public appendix, it was not until several months after the "Cooper Report" was released that we discovered this one humane and decent action proposed by Canada. Clearly such a sum of money, under whatever name, would help our clients survive until the trial and appeals were completed. But when we pursued the ex gratia recommendation, the same Canadian Justice Department lawyers who wrote the most damaging parts of the Cooper whitewash waded in and vetoed any payment above $20,000 (which was exactly the amount the CIA had put on the table as an insulting "nuisance" offer that our clients had already refused).

> We nonetheless pursued the $ 100,000 recommendation vigorously while the CIA's summary judgment motion was under consideration. In December of 1987, Mrs. Orlikow, Mr. Pagé, Mrs. Huard and Harvey Weinstein traveled to Ottawa with James Turner to press for an ex gratia payment of $ 100,000. An open letter was delivered to Prime Minister Mulroney, a press conference was held in the Parliament building, and public questions were once again asked in the House of Commons, with our clients in the Gallery. In response, the Justice Minister stated on the floor that he had instructed his deputies to make the ex gratia payment. Apparently those instructions changed or the lawyers were free to ignore them. When the payments finally came, it was only after the Court had denied the CIA's motion for summary judgment, and they were checks for $20,000.

> __________
> 41 As a former M.P. who maintained close ties with the Tory machine through his politically well-connected law firm, Cooper's perspective and motivation were a far cry from "independent."

> 42 This "red herring" characterization was lifted directly from the lips of the CIA's lawyers in meetings with Cooper's aides. After being duly reported to Cooper, the CIA position was reprinted now with the imprimatur of the Canadian Government. The CIA then quoted this "independent" conclusion by Cooper in court papers, without disclosing that it had been originated by the Agency itself. While some may believe that such manufacturing of evidence is an ethical practice for a government attorney, we have never thought that this kind of conduct had any place in our legal system.

> ### XII. SUMMARY JUDGMENT DENIED -- TRIAL PLANS

> On January 19, 1988, the Judge denied the CIA's effort to get our case thrown out of court.43 In a strongly worded opinion, the court rejected the CIA's broad claim that its employees exercise unlimited discretion in pursuing national security interests, even when their actions are negligent. As to the CIA's involvement in unethical human experimentation and medical malpractice, the court concluded that our case alleged "extraordinary and malevolent acts which by their very nature are beyond any reasonable discretion that Congress might have envisioned when creating the discretionary exception" to the Tort Claims Act. In short, the CIA's negligent actions were not shielded by the discretionary function exception, the court held, for none of those actions were grounded in policy considerations.

> The court likewise emphatically rejected the CIA's claim that negligent funding of human experimentation and medical malpractice were covered by the discretionary function exception, because "[w]hen a decision is made to conduct intelligence operations by methods which are unconstitutional or egregious, it is lacking in statutory or regulatory authority." 44 In addition, the court recognized that "if there is a standard by which [agovernment official's] action is measured, it is not within the exception."45 The court's opinion was equally clear that "[n]egligent selection or supervision is unquestionably an area for the judiciary," because the "government is held responsible for 'any negligent execution of admittedly discretionary policy judgments where the decisions required for the execution did not themselves involve the balancing of public policy factors.'"46 Mindful of the strong evidence we had of substandard conduct by government employees who did not abide by normal and reasonable standards, the Court held that "[s]electing incompetent contractors or employees and supervising them in a careless manner are acts of negligence pure and simple," which we would have an opportunity to prove at trial.47

> With one exception, we likewise prevailed on the other technical grounds urged by the CIA -- the statute of limitations, foreign country exception and the independent contractor argument. The last two arguments were, as we had thought, insubstantial in light of the Sami decision and the clear precedent that where the government "selects a third party to carry out its policy there is a duty to do so reasonably."48 On the CIA's broad claim that newspaper stories in the late 1970s and early 1980s about the Montreal experiments put all of the plaintiffs on notice that they should sue, the Court held that "[w]ithout actual notice or without having read the articles it would go too far to state that the statute of limitations began to run when the articles were published."49

> Unfortunately, one of our clients, Dr. Mary Morrow, had learned of the CIA involvement in Montreal in the summer of 1977, but had not joined our suit until March of 1981. There was a lengthy record of her Canadian lawyer's unsuccessful efforts to uncover the truth by corresponding with the CIA, which the Judge conceded "may constitute concealment." 50 But the Court concluded that Dr. Morrow "had knowledge of the 'who' and the 'what' of her cause of action" in the late 1970s, and that her "claim must therefore be dismissed." 51 Aside from this one setback, which we considered an incorrect application of the "due diligence discovery rule" to a situation in which there had been active concealment,52 our case had emerged intact.

> A. The CIA Effort to Prevent Trial

> With the issuance of the court's opinion, we immediately sought a hearing to schedule the completion of discovery and to set a trial date. At that February 2, 1988 hearing, we were astonished to learn that the CIA was still intent on pursuing its strategy of attrition, now by invoking a seldom used provision of the U.S. Code to seek court of appeals review of the district court decision prior to trial. To obtain such an "interlocutory appeal" under 28 U.S.C. § 1292(b), the trial Judge must in effect certify that he may be wrong and the court of appeals must agree to hear the case. Such appeals are extremely rare; no interlocutory appeals had been granted in the District of Columbia Circuit in the preceding two years although there had been thousands of Court Orders issued over that period.

> At the February 2 hearing, the CIA sought a one week continuance to decide whether to seek § 1292(b) certification of the Agency's discretionary function defense, and resisted our requests for a final discovery schedule and a prompt trial date. A trial date of June 7, 1988 was nonetheless set.

> A week later, when the CIA still had not decided whether to seek § 1292(b) certification, the Judge stated from the bench that "I would hope that any decision" as to certification "is made in the next week"; and counsel for the CIA responded, "I anticipate that it will." A full final pretrial schedule was established in the Court's Order entered on that same day, which also confirmed the June 7, 1988 as the final trial date and established May 11, 1988 as discovery cutoff. At that same hearing, the Judge specifically stated, "I advise the parties that discovery is open, and it's in preparation of the case, and they should pursue discovery."

> The Judge's instructions notwithstanding, the CIA continued its strategy of delay when, on the morning of February 22, we had a letter hand-delivered to the CIA's lawyer seeking depositions of the CIA's expert witnesses.53 Instead of making defendant's witnesses available as required by the Court's Order and the approved stipulation, on the following day, February 23, 1988, the CIA finally filed a motion for § 1292(b) certification (delivered to our offices after the close of business). Counsel for the CIA subsequently refused to set dates for depositions. Desperate to avoid and to delay trial at any costs, the CIA thus ignored both the Court's Order of February 9, 1988 and bench admonitions that discovery was underway. 54

> This eleventh hour effort to derail the Court's trial schedule so the CIA might re-litigate one of its rejected technical defenses was all the more remarkable because § 1292(b) is designed only for highly exceptional cases -- it is not a provision that allows an appeal whenever a summary judgment motion is denied. To secure such an interlocutory appeal the CIA would have to meet the extremely exacting burden of demonstrating that there is "a controlling issue of law as to which there is a substantial ground for difference of opinion and that an immediate appeal ... may materially advance the ultimate termination of the litigation...." 55 In view of the extremely high burden, which the CIA must have known it was unlikely to meet, it was clear to us that this was just another round in the same old game of delay, delay, delay.

> Sadly, the delay game worked again. Although no § 1292(b) appeal had been granted in the District of Columbia Circuit during the two preceding years, the CIA pressed forward, and the process of briefing and arguing its motion consumed the weeks that would have been spent on discovery. After briefing, the Court denied the Agency's dilatory motion within a few weeks, and the final discovery at long last began. There was, however, less than a month remaining before trial for deposing all the experts, on both sides, and the CIA immediately began seeking a delay in the trial on the ground that additional time was needed for discovery. This renewed effort to delay was successful and two weeks before June trial date, the Judge rescheduled the case for October 1988.

> B. The CIA Retools its Case

> As bad as this last delay was, what happened next was an even worse blow. Because one of the CIA's expert witnesses was injured in an automobile accident, the Agency had an excuse to designate a replacement. With the additional time bought by the § 1292(b) motion and the refusal to allow depositions during the winter and spring of 1988, the CIA had now located not one but four new experts to replace the injured psychiatrist. After another lengthy fight before the Judge, the Agency was allowed over our objections, to add three of the four.

> At the same time, the CIA began a series of harassing psychiatric examinations of our clients. We had resisted the Agency's earlier request that the Court conduct two separate trials -- one to establish liability and the second to establish the amount of monetary damages. We did so because with the experience of the § 1292(b) motion behind us, it was clear that the CIA would similarly abuse such "bifurcated" proceedings and seek an appeal after we prevailed in the first trial. But our refusal to agree to bifurcation opened the door for the examinations. Because money damages are based on the degree of injury suffered by each plaintiff, the CIA was able to secure a Court Order compelling our clients to undergo involuntary psychiatric evaluations by the Agency's experts. These examinations were tremendously traumatic for our clients who were forced to relive their most painful experience in tape recorded interviews by adverse psychiatrists, some of whom were former associates of Dr. Cameron. All apart from the months of delay brought by the CIA's § 1292(b) motion, it is quite unlikely that such intrusive evaluations would have been conducted had the original June trial date held.

> C. The Final Case of the CIA's Canadian Victims

> In the face of this major retooling by the CIA, our basic case changed very little. With trial approaching, Dr. Olson's widow, Alice W. Olson, agreed to appear as our first witness and gave several hours of moving deposition testimony about the tragic death of her husband and the CIA's concealment of its involvement from even his family. We planned to contrast the less than forthcoming testimony we expected from our second witness, former CIA Director Richard Helms, with the honesty and decency of both Mrs. Olson, and our third witness, brainwashing expert Robert Jay Lifton.

> With the tone set by Mrs. Olson on the first day, the remainder of our case would proceed through the testimony of the plaintiffs and their families, our psychiatric experts, who had now personally examined each plaintiff, and our other experts who knew of Cameron and the damaging effects of the experiments he conducted with CIA money. In addition, over the course of pointed cross- examination during epositions, our newly designated trial co-counsel Leonard Rubenstein of the Mental Health Law Project had elicited a series of concessions from even the new CIA experts, which further confirmed that Cameron's CIA-funded experimentation was highly controversial and of dubious therapeutic value.

> As the last depositions were being completed, and we began our final preparations, it was increasingly clear that the same evidence that had defeated the CIA's summary judgment motion would make a compelling case at trial. Although many of our clients expressed misgivings and fears at the prospect of a public trial where they and their lives would be subjected to hostile cross-examination, each plaintiff was prepared to undergo such an ordeal, if it meant finally seeing justice done after all the years of waiting.

> __________
> 43 Orlikow v. United States, 682 F.Supp. 77 (D.D.C. 1988).

> 44 Id. at 81 (citing Socialists Workers Party v. Attorney General of the United States, 642 F. Supp. 1357, 1417 (S.D.N.Y. 1986).

> 45 Id. at 82 (citing Barton v. United States, 609 F.2d 997, 999 (10th Cir. 1979)). The standard, of course, was the Nuremberg Code, which had been recognized as binding upon the United States in a February 26, 1953 Secretary of Defense directive and which the CIA had admitted "contains principles which are generally recognized to apply to medical experiments on human subjects." Indeed, the CIA had conceded that the Agency's "failure to adhere to established medical and scientific standards isn't discretionary." The Court's memorandum opinion sent a clear message that the CIA's argument that there were no standards in the 1950s was a loser.

> 46 Orlikow, 682 F.Supp. at 82 (citing Sami v. United States, 617 F.2d 755,766 (D.C. Cir. 1979).

> 47 Id. Because there were factual questions that surrounded the conduct of the CIA and its negligence in failing to control Gottlieb and Lashbrook, the Court specifically stated that the "issue of whether defendant delegated funding authority to persons unreasonably unfit to exercise it is one that must be left for trial." Id.

> 48 Id. at 87.

> 49 Id. at 85.

> 50 Id. at 86.

> 51 Id.

> 52 Dr. Morrow's Canadian lawyer had put the CIA on notice of her claim and was seeking additional information in an effort to settle without a formal claim and suit. There was no prejudice to the CIA and it seemed manifestly unfair to allow the Agency to manufacture a statute of limitations defense by dint of stonewalling such legitimate efforts to learn the truth. It was difficult to imagine any person exercising greater diligence than had Dr. Morrow and we believed that it was a mistaken interpretation of the law to allow a claim of repose to be based on continuing concealment. We therefore eventually filed a notice of appeal to secure review of this portion of the decision.

> 53 This discovery procedure had previously been agreed to by counsel for the Agency and was included in a Stipulation of the Parties approved by the Court on July 23, 1986, providing:

> > The parties, to the extent possible, will make available for deposition without the need for subpoenas or formal process those witnesses identified as possible trial witnesses who have not yet been deposed. Where one party requests the deposition of a witness designated by the other party and where that witness is not made available for deposition upon that request, such witness may not be called as a witness at trial."

> 54 It is doubtful that any other litigant would have simply ignored both its earlier agreements and the directions of a Judge. Under the stipulation, absent a stay of discovery we were entirely within our rights to bar from testifying at trial all of the CIA's expert witnesses who were not made available for deposition. Undeterred by this risk and likely needing time to prepare its witnesses, the CIA simply continued the stall.

> 55 28 U.S.C. § 1292(b). In addition, the Supreme Court had ruled that "even if the district judge certifies the order under § 1292(b), the appellant still 'has the burden of persuading the court of appeals that exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment." Coopers and Lybrant v. Livesay, 437 U.S. 463, 475 (1978), quoting Fisons, Ltd. v. United States, 458 F.2d 1241, 1248 (7th Cir. 1972). And, far from encouraging such appeals before final judgment, in the District of Columbia Circuit § 1292(b) is "meant to be applied in relatively few situations and should not be read as a significant incursion on the traditional federal policy against piecemeal appeals." Tolson v. United States, 732 F.2d 998, 1002 (D.C. Cir. l984), quoting 10 C. Wright, A. Miller and M. Kane, Federal Practice and Procedure section 2658.2 at 80 (2d ed. l983).

> ### XIII. CONFRONTING A PUBLIC INTEREST DILEMMA -- TRIAL OR SETTLEMENT

> When trial is so near, a case is so strong and one's clients are so frail, an inevitable conflict arises between public and private interests. There was an undeniable public interest in spreading the CIA's actions on the public record and, with a case as strong as our's, a trial laying out the details of the Agency's wrongdoing would serve the common good by educating both Americans and Canadians to the hazards and excesses of clandestine governmental activities. But there is also a potentially conflicting private interest in securing justice for the victims of those excesses.

> In our case, we concluded that the private interest in justice had to override the additional marginal public interest objective that would be secured by carrying the case through to trial. There were a number of factors that tipped the scales in favor of settlement. First, after a successful trial, we were certain that there would be a predictable delay in obtaining a favorable ruling from a Judge who had been so slow to act in the past, and whose delays in rendering a judgment after trial were legendary. Nor was that the end of the likely delay, particularly in light of Agency's performance in pursuing the extraordinary § 1292(b) appeal, we believed that the CIA was certain to appeal a judgment in our clients' favor, both to the Court of Appeals and U.S. Supreme Court. In all, this could mean another six to eight years of litigation before final resolution of the case. It was too much to ask of our clients -- one plaintiff had died during the pendency of the litigation, others were in their 70s and 80s, and many were in extreme financial need.

> In addition, over the course of our case there had been a movement of the Supreme Court further and further to the right as Ronald Reagan appointed three new Justices who marched in lockstep with the two conservatives already sitting on the Court. These changes in the composition of the Supreme Court in our estimation reduced the chances of successfully defending against a CIA appeal to that level.

> We believed that a trial would undeniably serve as a powerful educational vehicle. But a settlement could achieve many of the same ends if the public became aware of it. We hoped that we could get the word out broadly enough that, on balance, a settlement would fulfill the same educational function that a trial would further, and decided to take one last shot at initiating genuine settlement negotiations with the CIA.

> The CIA is not a monolithic institution and, like anywhere else in the government, there are differing perspectives and agendas in various parts of the Agency. In view of the strength of our legal and factual case, there was something irrational in the entrenched resistance to our efforts on behalf of the Canadian victims. We raised this question with a former CIA General Counsel, who had demonstrated some sensitivity to civil liberties concerns in his professional career, and he confirmed that the resistance to settlement was voiced by the operations people at the CIA. Those who were involved in current clandestine activities, due to concerns about protecting the secrecy of their own operations, out of loyalty to their predecessors, Helms and Gottlieb, or out of fear of a rash of litigation, were unalterably opposed to settlement of any kind. No matter how strongly the current CIA lawyers felt that settlement was appropriate, there would be a deadlock with the operations officials, and the case would grind on until our clients were dead or beyond benefit. 56 The only way we saw to break the deadlock was go over their heads.

> Thus, in a renewed effort to move forward to settlement, we decided that a final pretrial appeal to the head of the CIA was our best shot at securing recompense for our Canadian clients. William Webster had served as a distinguished Federal Judge in Missouri for many years, before coming to Washington as the FBI Director under President Carter. With the death of CIA Director William Casey in 1987, Webster had been appointed to succeed him. We hoped that, with his experience as a judge and sensitivity to human rights issues, Director Webster would take a fresh look at the CIA's resistance to settlement and the years of stonewalling our clients had endured.

> Joseph Rauh had met William Webster as a judge and later became acquainted with Webster when he came to Washington. They shared a mutual respect for one another. After obtaining the permission of U.S. Attorney Jay Stephens, who was officially representing the CIA in our case, we sent a personal letter from Rauh directly to CIA Director William Webster in July of 1988. It got through.

> The letter began "As you probably don't know and no doubt care less, I have retired from the practice of law," and suggested "that once you are made aware of the facts concerning the CIA funding of brainwashing experiments at a psychiatric hospital in Montreal, your own sense of fairness will bring a prompt resolution of this nine-year-old matter." Because it seemed likely that, as new CIA Director, Webster probably knew little if anything about the case, we set out the equivalent of a briefing memorandum describing the beginning of the case and the history of the CIA's MKULTRA Program. We then recounted our early efforts to settle the matter prior to filing suit with then CIA General Counsel Daniel Silver, only to be rebuffed on the incorrect ground that Cameron had applied for the funds without any prompting from the CIA.

> Because we hoped that Webster would take a fresh look at the CIA's conduct of this whole affair, we described in some detail the protracted delays caused by the Agency's resistance at every step of discovery, and the difficulties we encountered in piecing together the truth caused by the 1973 document destruction ordered by Richard Helms and Sidney Gottlieb. In addition, we thought that the story of the Agency's desperate effort to prevent disclosure of the details of the U.S. apology to Canada in the late 1970s was the kind of admission through action that Judge Webster would find unacceptable.

> There were also the admissions by former CIA Director Stansfield Turner that he "was aghast that the CIA had done something like this," that "it was unethical research and it was bad." It was our hope that Admiral Turner's acknowledgement of wrongdoing, along with former CIA General Counsel Silver's statement that what happened was "repugnant" and CIA Assistant General Counsel Allard's admission that "it is doubtful that any meaningful form of consent is involved in this case," would persuade Webster that the CIA's position was untenable.

> Finally, we pointed out that "the CIA's funding of Dr. Cameron simply reeks of negligence," because Gottlieb and Lashbrook had demonstrated that they were wholly unfit to be left in charge of a program of human experimentation by their "culpable negligence" in the death of Dr. Olson. We counted on all of this to persuade Webster to reverse the CIA's inexplicable refusal to even consider realistic compensation for its Canadian victims.

> The letter closed with the following appeal from "a civil libertarian who loves his country and deeply believes it will stand taller at home and throughout the world if it admits wrongdoing":

> > [W]ouldn't the Agency be a stronger organization by some recognition of wrong and some recompense therefor? Is it in our nation's tradition to compound the old wrong by continuing the struggle endlessly until many or most of the plaintiffs leave this earth with broken lives and without recognition there or recompense? A compassionate people can only give one answer.

> This letter had the hoped for impact. Once Webster became personally interested in the case, things promptly changed; he directed the CIA General Counsel to meet with us and the U.S Attorney's Office, and genuine negotiations began for the first time. Indeed, as we had suspected, the CIA General Counsel and the U.S. Attorney's Office generally favored settlement of the case and it had been the CIA Operations officials who had shunted aside our earlier efforts toward settlement.

> The process was one of negotiations, however. From our first discussions until the ultimate resolution of the case, on the day before the trial was to have begun, there were six rounds of offers and counter-offers. Throughout this process, we were aware that by Justice Department regulation, there was a $750,000 ceiling on any settlement we could achieve without the personal involvement of the Attorney General. In our estimation, the difficulties, uncertainties, and delays of securing such approval from even the post-Meese Justice Department meant that as a practical matter, 3/4 of a million dollars was the best we could do short of trial. On October 2, 1988, the U.S. Attorney's Office agreed to the payment of a settlement of 3/4 million dollars to plaintiffs. With the ex gratia payment by the Canadian Government, we had recovered about a million dollars for our clients.

> To our knowledge this represents the largest payment made by the CIA in litigation arising out of the MKULTRA program. In dollar terms the amount was not huge, but it was a significant lump sum payment that would make an important difference in the quality of life enjoyed by those of our clients who were impoverished or living on pensions. Equally important to us and to the Canadian victims as well, the dollar amount was enough to convey the symbolic message of U.S. Government contrition. Regardless of boilerplate denials, everyone knows that the CIA acknowledged its past wrongdoing -- no one pays 3/4 of a million dollars unless they did something wrong.

> The settlement, along with the details of our case and the massive wrong that was done to these innocent Canadians, was reported on major television networks, newspapers, and magazines in both Canada and the United States. In some respects, the impact of such focused attention on this one event -- an extraordinary admission of responsibility and contrition by the CIA, may have more widely disseminated the story of the Agency's abuse of our clients than would routine reports from a trial lasting many weeks. In retrospect, there is little question that settlement had been the right course in this case.

> The final confirmation came in a chance meeting with CIA Director Webster at a Justice Department reception. When we thanked him for breaking the deadlock, the Director expressed his gratitude for having learned of the case and stated "Sometimes you see the right thing to do, and you do it."

> __________
> 56 The effectiveness of the Operations people in stymieing settlement was confirmed after the case was resolved, when we learned that then CIA General Counsel, now U.S. District Judge, Stanley Sporkin, after a meeting with us had written a detailed memorandum endorsing settlement. Although Sporkin had long- standing ties with then CIA Director William Casey, even his personal intervention failed in the face of the opposition from the Operations Directorate.

> An Afterword

> A public interest litigation is a special kind of struggle, where plaintiffs' lawyers represent both their clients and a larger principle that they seek to vindicate. The burdens of serving both are heavy, but the satisfactions of success are even greater. And, as the story of the Orlikow case illustrates, the fight itself is nothing if not engrossing and challenging. Where else can a lawyer interrogate a CIA Director one day and draft questions for a Member of Parliament the next? To us it seems that public interest lawyers enjoy the lion's share of the satisfactions in our profession.

> It is easy for lawyers to lead a schizophrenic existence -- voicing socially responsible views in private, but representing anyone who can pay regardless of the damage to the public their clients and their cases will cause. An integrated life where one's professional activities are an extension of the same ethical and moral principles that shape one's private relations is a boon too often ignored or dismissed as unattainable in the "real world." We don't know of anyone who can work harder or have as much satisfaction in the practice of law as a lawyer whose cases are an extension of personal principles and commitments.

> With all its frustrations, the Orlikow case was highly satisfying -- a lesson in the capacity of an enlightened legal system to do justice even when the most powerful agencies and interests are arrayed against it. May we call it one ray of hope in troubled times?

> Return to contents

> Orginial Source