- Foreword
- I. HOW A PUBLIC INTEREST CASE BEGINS
- II. INVESTIGATION OF THE LAW
- III. INVESTIGATION OF THE FACTS
- A. Genesis of the MKULTRA Program and the CIA's Negligence in the Death of Dr. Frank Olson.
- B. CIA Negligence in the Funding of the Montreal Experiments
- C. CIA Negligent Funding of Experiments on Unwitting Victims
- IV. DECIDING TO TAKE A PUBLIC INTEREST CASE
- A. Defining a "Public Interest"
- B. Assessing the Importance of a Public Interest
- C. "Winability"
- D. Affordability
- V. EFFORT TO SETTLE BEFORE SUIT
- VI. PREPARATION OF COMPLAINT
- A. Pleading Facts Consistent with Coverage of the Tort Claims Act
- B. Developing Factual Evidence Corroborating Plaintiffs' Claims
- VII. DILEMMA WITH A JUDGE WHO WON'T DECIDE
- VIII. DISCOVERY AGAINST THE CIA
- A. CIA Concealment of the Facts
- B. Additional Facts from Discovery and Trial Preparation Underscore CIA Negligence
- 1. New Evidence about the Olson Death
- 2. New Evidence of CIA Negligence in its Relation to Cameron
- 3. New Evidence of CIA Negligence in Failing to Ensure Safety and Consent of Subjects
- 4. New Evidence -- Expert Evaluations of the Damaging Effects of Cameron's Experimentation upon Plaintiffs
- 5. New Evidence -- CIA Admissions of Culpability
- IX. EFFORTS AT SETTLEMENT WHILE DISCOVERY PLODS ON
- X. GOVERNMENT STALLING TACTICS ABETTED BY A SLOW JUDGE
- XI. CIA PRESSURE ON THE CANADIAN GOVERNMENT
- XII. SUMMARY JUDGMENT DENIED -- TRIAL PLANS
- A. The CIA Effort to Prevent Trial
- B. The CIA Retools its Case
- C. The Final Case of the CIA's Canadian Victims
- XIII. CONFRONTING A PUBLIC INTEREST DILEMMA -- TRIAL OR SETTLEMENT
- An Afterword___________
* © Copyright 1990 Hamline Journal of Public Law and Policy; Joseph L. Rauh, Jr. and James C. Turner. All rights reserved. The views expressed herein are those of the authors, who write solely in their personal capacity, not on behalf of any private or public entity. Suggested citation, II Hamline Journal of Public Law and Policy 307 (Fall 1990).
** B.S., 1932, magna cum laude, Harvard College; L.L.B., 1935, magna cum laude, Harvard Law School. 1935-42, Law Secretary to Mr. Justice Banjamin N. Cardozo and Mr. Justice Felix Frankfurter; Counsel to the Securities and Exchange Commission, Department of Labor, Federal Communications Commission, Lend-Lease Administration, and Office of Emergency Management. 1942-45, Served on General MacArthur's Staff in the United States Army in Southwest Pacific Area. Awarded Legion of Merit and Philippine Distinguished Service Star. 1946, General Deputy Housing Expediter. 1947-87, private practice of law in Washington, D.C.
*** Legal counsel to the United States House of Representatives Committee on Government Operations, Legislation & National Security Subcommittee. B.A., 1975, Cornell University; J.D. 1979, Catholic University of America. 1975-79, staff, United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities [the "Church" Committee]; United States Department of Agriculture, Office of Personnel, Equal Employment Section; United States Deptement of Transportation, Office for Civil Rights. 1979-80, legal counsel, Interstate Commerce Commission, Office of General Counsel. 1980-90, private practice of law in Washington, D.C.
Hamline Journal of Public Law and Policy
Volume II Fall 1990 Number 2ANATOMY OF A PUBLIC INTEREST CASE AGAINST THE CIA *
Joseph L. Rauh, Jr.** and James C. Turner ***
Table of Contents
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Foreword
Our courts serve us best when the law advances the public interest. Occasionally this happens in suits brought solely to protect a private party's personal interest, but more often progress is made through a test case brought and designed to further both public and private goals. Our decade long fight to secure redress for the Canadian victims of CIA brainwashing experiments, Orlikow, et al. v. United States,1 is an example of such a public interest litigation.
But this case involving the CIA goes far beyond the typical public interest litigation precisely because it addresses an area of lawbreaking where normal political and legal remedies are not available. As the late Senator Frank Church concluded, after leading the congressional investigation of the CIA's improper activities in the 1950s and 1960s, that agency was "a rogue elephant" operating outside the law and protected by a shroud of secrecy. This is an account of that rogue elephant's reckless experimentation upon unwitting Canadian citizens, as well as the story of a public interest litigation against an opponent of immense power and dubious purpose.
The forty years since 1950 have been an unprecedented period of national security hysteria fueled by the likes of the Dulles brothers, Joseph McCarthy, J. Edgar Hoover and Richard Helms, and implemented through repressive measures enacted by the state and federal legislatures. In the course of this hysteria, individual liberties have too often been sacrificed in the name of national security. During this period, federal court decisions have occasionally restored liberties and protected traditional constitutional values, but these judicial successes have been few and far between. The clash between liberty and national security has never been as stark as in the inhumane and illegal sponsorship of the Canadian brainwashing experiments by our most powerful national intelligence agency -- an institution that was created to protect and to preserve the very freedoms that were so devastated in those irresponsible experiments. After years of effort, vindication was won through the payment of nearly a million dollars to the CIA's victims by the governments of the United States and Canada in response to the federal suit.
This review of the CIA's actions in the United States and Canada demonstrates how completely unprincipled was the Agency's original brainwashing program, as well as its course of legal manoeuvers years later when it was required to answer for its misconduct. The story of the brainwashing suit and the barriers that were overcome before the CIA's victims were finally compensated, illustrates both the formidable hurdles presented and the unique satisfactions gleaned in a public interest law suit.
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1 682 F. Supp. 77 (D.D.C. 1988) (Civ. No. 80-3163)
I. HOW A PUBLIC INTEREST CASE BEGINS
There is a pattern to the genesis of public interest lawsuits. A great wrong has been or is being done that involves a violation of an important principle. A potential client comes to you with a plea, often nonsense, that "You're the only one who can or will fight to right this wrong." Indeed, this is the pattern that was followed in the initiation of our litigation against the CIA on behalf of the nine victims of brainwashing experiments at a Montreal psychiatric hospital in the late 1950s and early 1960s.
Early in 1979 Canadian Member of Parliament David Orlikow called our office with a horror story that bordered on the incredible. It seemed that some twenty years earlier, David's wife, Val Orlikow, had suffered a bout of depression following the birth of their daughter and had sought help at the leading psychiatric hospital in Canada -- the Allan Memorial Institute at McGill University in Montreal. Under the "care" of the Director of the Institute, Dr. D. Ewen Cameron, Val was su.jected to a number of unorthodox procedures in lieu of generally accepted psychotherapy. In particular, she was given injections of LSD and was exposed to what Dr. Cameron called "psychic driving" -- a procedure used nowhere else in which tape-recorded messages were played hundreds of thousands of times. Not surprisingly, these bizarre procedures did not help Val, but made her condition worse.
It was only in the late seventies that David and Val learned for the first time, from a New York Times story, that Cameron's work had been subsidized by the United States Central Intelligence Agency as part of a secret program to study techniques of brainwashing. The Orlikows wanted to sue the CIA for its part in experiments performed on Val by the now deceased Cameron; they insisted that there was no one else who would take their case and help them right this wrong.
Getting the full story from a potential client is always important, but it is paramount in a public interest litigation, because the suit is brought to advance a principle as well as to vindicate an individual. Concealed pitfalls, half-truths or distortions will inevitably sabotage both objectives. A lesson learned time and again during the McCarthy period is that a public interest lawyer must insist on the whole story, warts and all. McCarthy's victims had to be induced to tell their whole story despite their fears of confiding in anyone, even their own lawyers. We insisted on all the facts in this case before agreeing to represent the Orlikows and other victims of the CIA's Canadian fiasco. From the beginning and throughout the long fight for justice our clients told us the truth. Without this confidence we would not and could not have properly represented them.
II. INVESTIGATION OF THE LAW
Having established the rough contours of the wrong done to the Orlikows and convinced of their credibility, the next step was to determine whether there is some legal basis for liability on the part of the CIA. Clearly Val and David Orlikow had been victims of some specie of tort, but when the government is involved, the courts have historically been reluctant to drain the public treasury to compensate for the misdeeds of government employees. This judicial reluctance is embodied in the doctrine of sovereign immunity, which excuses governmental liability for such torts. Recognizing the unjustness of this broad immunity imported from English common law, Congress in 1946 enacted the Federal Tort Claims Act providing a limited waiver of sovereign immunity for negligent acts of government employees.2 This was our legal basis for suit.
But the Tort Claims Act is a sharply limited basis for liability; the Act does not provide liability for intentional torts, foreign torts, torts by "independent contractors" and torts committed by government employees executing discretionary functions.3 Of these, the foreign torts exception was the most immediately troublesome legal point, because so much of what occurred happened in Montreal outside the United States.4
When the Orlikows came to us, the law of foreign torts was rather unsettled; there had been no definitive interpretation by the Supreme Court and only a few federal court rulings had construed this limitation in the Tort Claims Act. Fortunately, a case was then pending in the District of Columbia Circuit that raised exactly this issue, Sami v. United States.5 We obtained the appellate brief filed by the plaintiff's counsel in the Sami case and agreed with the legal view he argued -- that under the Tort Claims Act that it was the place where the governmental negligence occurred that mattered, not the site where that negligence had its operative impact. After reviewing the Sami brief, we were fairly confident that the D.C. Circuit would eventually construe the Tort Claims Act as covering cases like our's where the negligent acts occurred in the United States but had their damaging impact abroad.6
A second potential problem was that intentional torts are excluded from the Tort Claims Act waiver of sovereign immunity -- we had to plead and to demonstrate negligence for a recovery. Negligence is, of course, largely a question of fact -- what happened, who was careless, who was reckless, who was injured. To make out a prima facie case of negligence, however, one must have an identifiable standard of care that was violated. As a matter of general tort law, a person is required to exercise the prudence of a reasonable person in like circumstances. What that standard means thus depends upon the particular circumstances present in a case.
In our case, a detailed articulation of the duties and responsibilities of those involved in conducting human subject experiments, which was of tremendous public relations value over the course of the suit, was handed to us on a silver platter in the form of the Nuremburg Code. The Nazis' notorious medical experimentation had not only led to the execution of German experimenters after the War Crime Trials at Nuremburg, but resulted in a comprehensive articulation of ethical standards for medical experimentation. These standards explained in great detail the requirements that medical researchers take appropriate measures to protect the health and well-being of their patients who volunteer to undergo experimental procedures. Most importantly, the Nuremburg Code required that the "informed consent" of the patient must be obtained before any experimentation.7 This was our key legal standard for negligence in the failure to secure consent.
Val and David Orlikow were adamant that no one had ever told them of any experiment, much less obtained their consent. This seemed to be the clearest possible violation of the standard of care articulated in the Nuremburg Code. The use of LSD and the brainwashing tapes that Val described were a far cry from any accepted psychiatric therapy and their dangers were certainly well-known to the CIA. Knowingly financing such hazardous experimentation without requiring that Cameron take precautions to protect his patients seemed to be another clear violation of standard of the Nuremburg Code. But the detailed statement of these violations would require more facts than the Orlikows could provide.
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2 28 U.S.C. 1346(b) grants U.S. District Courts "exclusive jurisdiction of civil actions on claims against the United States, for money damages ... for injury or loss of property, or personal injury or death caused by the negligent act or wrongful act or omission of any employee of the Government."
3 Virtually all intentional torts are exempted from Tort Claims Act coverage by 28 U.S.C. 2680(h), which excludes "any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." 28 U.S.C. 2680 excludes "any claim arising in a foreign country." 28 U.S.C. 2680(a) excludes "Any claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused."
4 During the 1950s, the CIA's offices where the Agency's negligence had occurred were located in the District of Columbia, so jurisdiction and venue properly lay in that district (28 U.S.C. 1346, 1402).
5 617 F.2d 755 (D.C.Cir 1979).
6 Things worked out as we had hoped. About two weeks after we filed our Complaint in the Orlikow case, the D.C. Circuit handed down its decision in Sami. In that decision, our Court of Appeals ruled that it was the place where the governmental negligence occurred, not the place of the injury, that was controlling. 617 F.2d 755, 761-63 (D.C. Cir. 1979). We could now rely on the Sami decision and its gloss on the foreign country exception as the controlling precedent in our case.
7The voluntary consent of the human subject is essential. This means that the person involved should have the legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, over-reaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the subject matter involved as to enable him to make an understanding and enlightened decision.... The duty and responsibility for ascertaining the quality of the consent rests upon each individual who initiates, directs, or engages in the experiment. It is a personal duty and responsibility which may not be delegated to another with impunity.
United States v. Brandt (The Medical Case), II Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, at 181-82 (1949).
III. INVESTIGATION OF THE FACTS
In some respects, we were lucky in developing the facts needed to make out a case, because much of the legwork had already been done by journalists and Congressional investigations. In 1975 the Rockefeller Commission and the Senate Intelligence Committee had investigated the CIA's domestic abuses and issued detailed reports on them. Most importantly, in 1977 an enterprising author, John Marks, had forced public disclosure under the Freedom of Information Act of thousands of pages of CIA documents that had not been available to the earlier investigations. These documents, which consisted largely of financial records that had been missed in 1973 when the vast bulk of such materials were destroyed, provided an overview of a top secret CIA program of behavior control and brainwashing experiments code-named MKULTRA.8
With the assistance of researcher Jay Peterzell and the Center for National Security Studies, Marks interviewed CIA-funded researchers, former CIA officers and victims of the MKULTRA to piece together the remarkable story of the CIA experiments in the U.S. and Canada. Marks' award-winning book 9 was the culmination of this effort. Marks agreed to give us free access to his files and Peterzell agreed to work with us in developing the facts. Both resources were invaluable.
In others respects, we faced tremendous obstacles. The trail was over twenty years old. Potential witnesses had died, memories had faded and the surviving victims' health had deteriorated. Despite Marks' success under the Freedom of Information Act, the vast majority of MKULTRA documents had been destroyed. And the defendant was an agency trained in misdirection and steeped in deception. Nonetheless from Congressional hearings and reports, the surviving CIA documents, and the Marks files, we were able to substantiate the following basic facts about the case.
A. Genesis of the MKULTRA Program and the CIA's Negligence in the Death of Dr. Frank Olson.
In the early 1950s the CIA reaction to the unprecedented confessions of U.S. POW's in Korea was one of panic that the Communists had discovered an effective method of "brainwashing" our soldiers. The response was an intensive research and development program code-named "MKULTRA." It was in April of 1953 that Richard Helms, then the head of the CIA's Operations Directorate, recommended that the Agency explore covert brainwashing techniques for offensive and defensive use, to counter the suspected Soviet and Chinese efforts in that area. CIA Director Allen Dulles promptly approved the MKULTRA Program which was to operate outside the usual CIA administrative channels without "the usual contractual arrangements," and to be highly "compartmented." Dulles also ordered that "exacting control will be maintained over the Project by TSS."10
Proving negligence was essential to our Tort Claims Act case, and our starting point was the story of the CIA's role in the death of Dr. Frank Olson in an early MKULTRA drug experiment. The Olson tragedy is relevant because it occurred three years prior to the CIA funding of the experiments in Montreal and involved the two key Agency officers who approved that funding -- Sidney Gottlieb and Robert Lashbrook.
In November of 1953, Gottlieb and Lashbrook were directly responsible for an LSD test that preceded the death of Dr. Olson, an Army chemical and biological warfare expert, who had no forewarning that he was to be made an experimental subject. After receiving LSD surreptitiously administered in a glass of cointreau, Dr. Olson suffered a severe depression, was taken by Lashbrook to New York City for consultations with an allergist named Harold Abramson, who had been testing LSD for the CIA as an MKULTRA researcher. Without ever being taken to see a psychiatrist or, indeed, any physician who was independent of the CIA, Dr. Olson fell to his death from the window of a tenth story room he shared with Lashbrook at the New York Statler Hotel.
Although the CIA was able to cover up its responsibility for the Olson death, Dulles ordered an investigation by his General Counsel, Lawrence Houston, who concluded that there had been "culpable negligence" by the CIA officials in charge of MKULTRA and "a death occurred which might have been prevented."11 CIA Inspector General Lyman Kirkpatrick, who also reviewed the Olson tragedy at Dulles' request, recommended that there "should immediately be established a high-level intra-Agency board which should review all TSS experiments and give approval in advance to any in which human beings are involved." Kirkpatrick also recommended that the CIA employees involved in the Olson death should be reprimanded.
Despite these conclusions and recommendations, Gottlieb and Lashbrook continued their activities unreprimanded and unsupervised. Indeed, we had further evidence of the CIA's negligence in the subsequent findings of its CIA Inspector General in 1957 that some of the MKULTRA activities "are considered to be professionally unethical and in some instances border on the illegal" and "are not only unorthodox but unethical and sometimes illegal."12 The CIA's failure to take appropriate measures to curb Gottlieb and Lashbrook despite these repeated findings is precisely the kind of negligent omission contemplated by the Tort Claims Act, and seemed to be one sound ground for liability.
B. CIA Negligence in the Funding of the Montreal Experiments
Early in 1957, Dr. D. Ewen Cameron, Director of the Allan Memorial Institute in Montreal, submitted a formal grant application to the "Society for the Investigation of Human Ecology" a CIA front operating at the Cornell University Medical School in New York City. That application proposed to extend brainwashing experimentation which Cameron described as follows:
i. The breaking down of ongoing patterns of the patient's behavior by means of particularly intensive electroshocks (depatterning).
ii. The intensive repetition (16 hours a day for 6 or 7 days) of the prearranged verbal signal.
iii. During this period of intensive repetition the patient is kept in partial sensory isolation.
iv. Repression of the driving period is carried out by putting the patient, after the conclusion of the period, into continuous sleep for 7-10 days.
Cameron also proposed to test drugs such as "LSD 25 and other similar agents" in "depatterning" his patients and to experiment with new methods of "inactivating" the patient during the repetition of verbal signals with other drugs including curare, a drug used in surgery to temporarily paralyze a patient's involuntary muscles.
Cameron's application for funds was dated January 21, 1957 and on February 26, 1957 Gottlieb and other CIA officials approved the application in a Memorandum that simply repeats, without reasoning or explanation, the application virtually in haec verba. Shortly thereafter, Gottlieb's deputy, Lashbrook, approved the first payment to Cameron. Despite the CIA General Counsel's explicit criticism of the "culpable negligence" in the Olson death on the part of Gottlieb and Lashbrook, they called the shots at the Agency on the Cameron application, which was not even reviewed by the CIA own Medical Staff.13
In all, the CIA provided some $60,000 over four years for the experiments described in the Cameron application. At no point in any of the surviving CIA documents is the slightest concern expressed for the rights or well-being of the subjects of these CIA-funded experiments. The casual indifference to Cameron's patients exhibited throughout the CIA's documentary record, particularly after the disastrous Olson LSD experiment, simply reeked of negligence.
C. CIA Negligent Funding of Experiments on Unwitting Subjects
The unambiguous standards for medical experimentation formalized at Nuremburg nearly a decade before the CIA subsidies to Cameron specifically required that "informed consent" be obtained from subjects in medical experimentation. Val and David Orlikow swore that they had never consented to any experimentation at the Allan Memorial Institute and, indeed, the Institute's medical records contained only a telegram from David authorizing Val's admission "for treatment."
The documentary evidence from the CIA contained no mention whatsoever of using volunteers, and it was clear from the application Cameron had submitted that experimental subjects would be drawn from the patient population of the Allan Memorial Institute. Finally, the use of non-volunteers was the modus operandi of the MKULTRA program and its two chief operatives, Gottlieb and Lashbrook; this practice was strongly criticized by two CIA Inspectors General during the late 1950s and early 1960s.14 This strong circumstantial evidencecorroborated the Orlikows' story, strengthened this third aspect of the CIA's negligence in funding the experiments in Montreal.
* * * * *
From each of these three perspectives -- leaving those responsible for Dr. Olson's death in charge of MKULTRA, financing extraordinarily dangerous experiments without taking any precautions, and experimenting upon unwitting, non-volunteer subjects -- it appeared to be a sound prima facie case. But there was one question that we could not answer: Did Cameron know he was working for the CIA? On the one hand there was an express notation in an MKULTRA file that Cameron and his staff were to remain unwitting of their CIA sponsorship.15 On the other hand there was Cameron's history as a trusted consultant to the U.S. Government who had evaluated Rudolf Hess' competence tostand trial at the end of World War II, and Cameron's peculiar application for funding to the CIA front, which seemed to have less to do with psychiatric therapy than with brainwashing experimentation.
We asked our first expert, Dr. Leon Salzman, an eminent psychiatrist who had practiced and taught in Washington and New York since the 1940s, to review the Cameron application and Val Orlikow's medical records and to discuss them with us. Dr. Salzman was direct and emphatic, in his expert opinion the application proposed experiments clearly tailored to explore techniques of "brainwashing," and the bizarre combination of procedures offered little if any hope of helping Cameron's patients. Indeed Dr. Salzman's insight was confirmed by the public admission of Cameron's technical assistant, Leonard Rubenstein, in an August 2, 1977 New York Times interview that the work Cameron did with CIA funds "was directly related to brainwashing." Rubenstein explained:
They hadinvestigated brainwashing among soldiers who had been in Korea. We in Montreal started ... brainwashing patients instead of using drugs.
Unfortunately all of this was circumstantial. Because Cameron was dead, a definitive answer to the question "what he knew and when he knew it" vis-à-vis his CIA subsidies was likely impossible.
But did it matter whether Cameron knew that the CIA was paying him? Focusing on Cameron's knowledge was looking through the wrong end of the telescope. For purposes of suing the CIA, what mattered was what the CIA knew. On that score, the record couldn't be clearer. Cameron's application set out the experiments in detail and the CIA authorized subsidies for that experimentation. Finally, as Val Orlikow's hospital records made clear, the CIA got what it paid for. Whether Cameron was a witting accomplice or a unknowing dupe was beside the point. < P>
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8 We later learned when deposing former CIA officer Robert Lashbrook that each of these financial documents were "deliberately written so it would reveal a minimum." Only 56 pages of even these highly sanitized financial records concerning the Montreal project were provided to us by the CIA in discovery.
9 J. Marks, The Search for the "Manchurian Candidate": The CIA and Mind Control (1977).
10 TSS is the abbreviation for Technical Services Section, the CIA component responsible for MKULTRA, which a few years later became the Technical Services Division or TSD. The "MK" in "MKULTRA" denotes that the program was conducted by the Technical Services Division.
11 Houston's detailed conclusions were particularly damning:
I am not happy with what seems to me a very casual attitude on the part of TSS representatives to the way this experiment was conducted and to their remarks that this is just one of the risks running with scientific experimentation. I do not eliminate the need for taking risks, but I do believe, especially when human health or life is at stake, that at least the prudent reasonable measures which can be taken to minimize risk must be taken and failure to do so is culpable negligence. The actions of the various individuals concerned when the effects of the experiment on Dr. Olson became manifest also revealed the failure to observe normal and reasonable precautions.... As a result a death occurred which might have been evented....
12 Final Report of the Senate Select Committee to Study Governmental Operations with respect to Intelligence Activities, S. Rep. No. 94-755, 94th Cong., 2d Sess. Book I, at 394, 410 (1976).
13 The former Chief of the CIA's Medical Staff, Dr. Edward Gunn, testified in 1975 Senate Hearings:
Dr. Gunn. From 1955 to approximately 1959 or 1960, there was at least once a year a meeting that was held with the head of that office. But we never saw more than some very general outline that there was such a research program. We never saw the direct material for a program. We had offered to assist TSD by providing medical support and guidance, but it was always "thank you very much."
Senator Kennedy. Were you satisfied that Dr. Gottlieb's group was adequately protecting its subjects?
Dr. Gunn. From the standpoint of the Office of Medical Services, we could not, no, because we did not know what they were doing.
Biomedical and Behavioral Research: Joint Hearings before the Subcomm. on Health of the Senate Comm. on Labor and Public Welfare and Subcomm. on Administation, Practice and Procedure of the Senate Comm. on the Judiciary, 94th Cong., 1st Sess. 259 (1975).
14 Similar concerns were voiced during the mid-1970s, with key CIA officials, such as the Deputy Director for Science and Technology Carl E. Duckett admitting at U.S. Senate hearings that the CIA unwitting drug tests were "wrong" and with the Senate Intelligence Committee concluding that compartmentation was used in the MKULTRA Program to conceal the "unethical and illicit activities" by the CIA. As the Senate Intelligence Committee stated:
Few people, even within the agencies, knew of the programs and there is no evidence that either the executive branch or Congress were ever informed of them. The highly compartmented nature of these programs may be explained in part by an observation made by the CIA Inspector General that, "the knowledge that the Agency is engaging in unethical and illicit activities would have serious repercussions...."
Final Report of the Senate Select Committee to Study Governmental Operations with respect to Intelligence Activities, S. Rep. No. 94-755, 94th Cong., 2d Sess. Book I, at 385-86 (1976).
15 In view of the CIA's overwhelming desire to protect MKULTRA researchers from embarrassment when the Agency's role became public --indeed the CIA successfully fought a Freedom of Information Act all the way to the Supreme Court to prevent even the names of some MKULTRA researchers from being made public, Central Intelligence Agency v. Sims, 471 U.S. 181 (1985) -- we did not view this notation as particularly credible. Such a covering of the trail would be entirely consistent with protecting Cameron rather than reflecting what actually happened and who knew what.
IV. DECIDING TO TAKE A PUBLIC INTEREST CASE
Deciding whether to proceed with a public interest case requires a lawyer to answer four questions. Will the suit advance a public interest? Is that interest an important one? Can you afford to take the case? And, can you win? Our answer to each of these questions in the CIA brainwashing case was, rather obviously, "yes," but again the considerations that led to that conclusion illustrate the unique nature of a public interest litigation.
A. Defining a "Public Interest"
There are probably as many different definitions of the "public interest" as there are people who think about the concept. We certainly make no claim of being able to define any single position that is the public interest, and do not believe that there is any objective standard for doing so. But the absence of an objective standard does not relieve the ethical lawyer from a professional responsibility to advance the public interest -- as he or she sees it. For example, there are those who honestly believe abortion is murder, while others are adamant that a woman has an absolute right to control her own body and to end an unwanted pregnancy. According to their own view, each side is fighting for the public interest. Just because other people may argue with your conclusion about where the public interest lies does not mean that you are excused from thinking and acting to promote the public interest.
Here, at least employing our own subjective standard, the public interest seemed clear: "the CIA is not above the law." The rule of law is a cornerstone to our democratic system of government; holding the executive branch legally accountable in the courts is a key means of protecting our civil freedom. Vindicating this principle and extending it to the most secret and deceptive part of the federal government would be a significant stride in advancing the public interest. We concluded that the Orlikow case presented an ideal vehicle for reasserting this important principle.16
B. Assessing the Importance of a Public Interest
The importance of securing judicial accountability for the CIA was demonstrated time and again, both before and during the litigation. In the words of the late Senator Frank Church, who led the congressional investigation of the CIA's improper and unlawful actions, that agency was "a rogue elephant" in the 1950s and 1960s operating above the law and out of control as it plotted assassinations, illegally spied on thousands of Americans, and even drugged our own citizens in its effort to develop new weapons for its covert arsenal. When those actions were exposed by the congressional committees in the 1970s, the CIA showed some disposition for reform, but those reforms were embodied in internal CIA regulations and Executive Orders, and were thus subject to change whenever a new administration entered office or a new CIA Director took over. We believed that using the Tort Claims Act to secure compensation in a court of law for the CIA's victims would not only complete the public repudiation of these abuses, but would also extend the rule of law to the CIA and serve as a concrete deterrent to future abuses.
Moreover, in the Canadians' case, instead of admitting its wrongdoing and accepting responsibility, the CIA chose simply to ignore the plight of its victims. The importance to all Americans of curbing this continued arrogance by a secret agency of our government could hardly be overstated. We felt that judicial accountability for these past abuses could help to do so.
Finally while the suit was underway, there was a return to business as usual at the CIA. The reforms of the 1970s became dead letters in the 1980s as new Executive Orders and attitudes allowed the CIA to veil more of its activities in a cloak of secrecy, and then CIA Director William Casey adopted an "anything goes" attitude. This had a predictable impact on the Agency, which no longer felt the restraints of the 1970s and returned to the days of the rogue elephant, advising Central American guerrillas that assassinations are appropriate, sponsoring covert wars throughout the world, and hiding illegal activities behind claims of national security. In short, the CIA was again operating outside the law. Throughout the court fight, these continuing examples of CIA lawlessness reinforced our conclusion that judicial redress was an important means of forcing some restraint upon this Agency's threat to the rights of human beings at home and abroad.
C. "Winability"
The question of whether a public interest case can be won is particularly important because a loss is not only a defeat for the plaintiff but also for the principle. With the documents obtained by John Marks as support, there seemed little question that factually we were on firm ground. As to the law, one should not be faint-hearted. We thought that the pending Sami case offered a way around the foreign country exception, and indeed as the suit unfolded, that most difficult potential legal problem evaporated. More important legally was the Nuremburg Code which provided a codified ethical standard that the CIA could scarcely shrug off. All together it looked like a winner.
In addition, David Orlikow's stature as a respected Member of the Canadian Parliament gave us reason to expect the support of the Canadian Government in the fight. This was an important consideration. We expected that the Canadians would resent an ally who used their citizens as unwitting guinea pigs in brainwashing experiments, and that Canada's support for its citizens would strengthen our hand in seeking prompt recompense by the CIA. These expectations, sadly, were never realized.
D. Affordability
The decision to take a public interest case brings with it a commitment to see the matter through to its conclusion. Neither the Orlikows nor any of the other Canadian victims were in a position to pay us to bring the suit, so a contingency fee under the limitations of the Tort Claims Act was the only option. Although this would mean a long wait for legal fees, if any, we were sufficiently convinced of the importance of this case and its winability to take the case on this basis. In addition, discovery costs would be large, but we were prepared to advance some of those costs from our firm's funds and to seek support from foundations to pay the remainder.17 For better or worse, we decided to go forward.
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16 The recent spectacle of Col. Oliver North's covert actions and the Reagan Administration's widespread disdain for this critical principle underscores the need to bring some measure of accountability to those engaged in clandestine activities.
17 In addition to our own funds, litigation costs, which eventually exceeded $60,000, were defrayed by two grants of $20,000 awarded by the J. Roderick MacArthur Foundation through the American Civil Liberties Union, funds raised by David Orlikow and other concerned Canadians, and support provided by the Mental Health Law Project.
V. EFFORT TO SETTLE BEFORE SUIT
Before any lawsuit can be filed under the Tort Claims Act, an administrative claim must be presented to the federal agency that was negligent, which gives the government a chance to settle the case. During 1979, we submitted administrative claims on behalf of Val Orlikow and two other Canadian victims -- Jean Charles Pagé and Robert Logie -- and were somewhat encouraged by the response of CIA General Counsel Daniel B. Silver. On October 11, 1979, Silver wrote us that "the policy of CIA is not to shirk responsibility for the unfortunate acts that occurred in the course of the MKULTRA program," and that he found the experimental research conducted by Dr. Cameron "repugnant."
Nonetheless, when we sought to settle our clients' claims prior to suit, the CIA refused to negotiate on the ground that Cameron's application for funds was "unsolicited." This claim, even if true, seemed legally irrelevant to us. After all, the CIA knew what the experiments would involve and voluntarily provided funds for them. Whether the CIA or Cameron initiated the contacts did not seem to us to have any bearing on the CIA's liability.
But as it turned out, the CIA General Counsel's version of what had happened was untrue -- CIA representatives had gone to Cameron and solicited the application. As we detail below this falsehood, which was even repeated in defendant's formal Answer to our Complaint, was exploded in discovery when retired CIA officer John W. Gittinger told the truth at his deposition -- that he and the CIA had initiated the contacts with Cameron. Despite the fact that Gittinger was well-known within the CIA as having been involved in MKULTRA and was identified in Agency documents as the "Project Monitor" for the McGill experiments, the CIA lawyers didn't even bother to check their facts with him before asserting this groundless defense.
In any event the CIA refused to negotiate settlement, which raised a new legal problem. Our correspondence with the General Counsel contained valuable admissions by the CIA. Could we use these settlement documents in our case? Although Federal Rule of Evidence 408 precludes the admission in court of "[e]vidence of conduct or statements made in compromise negotiations," there is no legal bar upon using such admissions in public debate. Moreover, where the government has relied upon patently spurious grounds for refusing to settle a claim, it is entirely proper to disclose its erroneous position when presenting the evidence that disproves it.
In addition, the Tort Claims Act requires claimants to exhaust administrative remedies by presenting their claims to the Agency involved. Because of this requirement, we were able to include in court documents both the General Counsel's admissions and the false basis for refusing to discuss settlement. In this way, normally excluded evidence played a role in the factual development of the Orlikow case.
VI. PREPARATION OF COMPLAINT
At the same time we were engaged in our pre-litigation effort to settle with the CIA, we were also working hard on the eventual complaint in the case. These two jobs were complementary, since information obtained in the negotiations, such as they were, contributed to the factual development of our case, and the disciplined articulation of legal theories in a formal document aided in our presentation of our clients' claims to the CIA. By the time that we had received the final denial of our clients' claims -- a prerequisite for suit under the Tort Claims Act -- we had nearly completed a detailed complaint.
A. Pleading Facts Consistent with Coverage of the Tort Claims Act
As we have noted, the Tort Claims Act only waives sovereign immunity for torts sounding in negligence. Intentional torts such as assault and battery are not bases for liability under that statute. This limitation posed a potentially significant problem for us, because torts based on medical malpractice, particularly those involving a failure to secure consent, had originally evolved from assault. There was an important distinction in our case, however -- we were seeking recovery from the CIA, not an incompetent physician. Throughout our development of the case we continually tried to keep the focus of debate on the Agency and its recklessness, a strategy that was happily consistent both with our clients' private interests in financial recompense and the public interest in forcing judicial accountability upon the CIA.
Our investigation of the facts already on the public record had provided a wealth of evidence of the CIA's negligence. Now, aided immeasurably by the unique conceptual insights of our partner, John Silard, we formulated our clients' claims in three categories:
i. Negligent failure to supervise -- the Olson count;
ii. Negligent funding of extra-hazardous experimentation -- the brainwashing count; and
iii. Negligent funding of experimentation on patients who had not volunteered to be experimental subjects -- the Nuremberg count. The final complaint set out these three negligence counts and, with John's brilliant drafting, skillfully avoided the intentional tort exception. Indeed by articulating the wrong in this fashion, an intentional tort defense was practically untenable -- the CIA was in no political position to insist that its torts against our clients were intentional, not negligent.
B. Developing Factual Evidence Corroborating Plaintiffs' Claims
Because the case was so unusual and the underlying facts were so complex, our complaint contained a wealth of detailed allegations concerning the MKULTRA program and the CIA.18 In addition to the facts concerning the MKULTRA program that we have summarized above, we provided details concerning the three Canadian victims who we then represented. Using facts gleaned from their Allan Memorial Institute medical records we were able to confirm that our clients had indeed been subjected to experimentation as described in the Cameron application to the CIA "front."
These records showed that Val Orlikow, who sought treatment for depression, instead had been subjected to many months of "psychic driving" and 16 LSD trips. Jean-Charles Pagé, who entered the Allan Memorial Institute for treatment of alcoholism, was "depatterned" with and became addicted to powerful barbiturates, and was placed in "continuous sleep" for thirty-six days. Robert Logie, who came to the hospital for treatment of leg pains that were incorrectly diagnosed as psycho-somatic, was depatterned with intensive electroshocks and LSD, and subjected to drug-induced sleep for a period of twenty-three days.19
Other victims came forward and joined the suit over the next two years until there were nine in all. The Allan medical records confirmed that the six additional patients we came to represent had also been victims of the brainwashing experimentation during the period of CIA funding. Jeanine Huard, who also sought treatment for depression, was depatterned with intensive electroshocks and drugs, and subjected to psychic driving. Lyvia Stadler, another patient suffering from depression, was subjected to depatterning, psychic driving and prolonged drug-induced sleep. Dr. Mary Morrow, an intern who was admitted to the Allan Memorial after being told by Cameron that she needed "rest," was depatterned with intensive electroshocks and barbiturates. Rita Zimmerman, who sought treatment for alcoholism, was depatterned with 30 electroshock sessions until in Cameron's words she was "incontinent of stool on occasion." Mrs. Zimmerman was also subjected to over a month of psychic driving and some 56 days of drug-induced sleep. Florence Langleben, who sought treatment for anxiety attacks, was depatterned with LSD and intensive electroshocks, and subjected to over a month of psychic driving and some 43 days of drug-induced sleep.
The story of the last of the nine plaintiffs, Louis Weinstein, is perhaps the most stark example of the devastating impact these brainwashing experiments had upon the innocent Canadian victims. At the hospital he was subjected to depatterning with intensive electroshock and LSD, months of psychic driving (sometimes in "sensory isolation" where all he could perceive was the taped messages), and prolonged drug-induced sleep. A successful and prosperous Montreal businessman when he entered the Allan Memorial Institute for treatment of anxiety, Mr. Weinstein lost his business and was unable ever again to support his family.20
In addition, the nine victims, most of whom were by then elderly and frail, never consented to participate in any form of experimentation. David Orlikow sent a telegram authorizing his wife's admission "for treatment." Janine Huard, Mary Morrow, Rita Zimmerman, and Louis Weinstein signed standard hospital admission forms entitled "consent for examinations and treatments." The medical records of the other victims did not contain even such a consent for treatment. The nine and their families could not remember ever being told that they were the subjects of experiments for research or any other purpose, and they were sure that none of them had ever volunteered to be subjects in any experiments or research.
On December 11, 1980 we filed our Complaint against the CIA under the Tort Claims Act.
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18 Of these hundreds of detailed allegations, only one was not confirmed in subsequent discovery and that allegation had been made on "information and belief"; we had guessed wrong about a name excised from a CIA document released to Marks.
19 The intensive electroshocks used in these experiments are not the same form of ECT used routinely in the treatment of patients suffering from depression. Both the voltage and the number of shocks administered were greatly increased. Instead of stopping after the procedure had induced one grand mal seizure, subjectswere shocked again and again until no further seizures could be elicited. There is no question that this was a profoundly intrusive and destructive form of electroshock, which was far different in kind from that which was conventionally used for therapeutic purposes.
20 The story of the tragic disruption of a family's life is movingly recounted by Louis Weinstein's psychiatrist son, Harvey, in H. Weinstein, A Father, a Son and the CIA (1988).
VII. DILEMMA WITH A JUDGE WHO WON'T DECIDE
The CIA's first response to the suit by the Canadians was a harbinger of the Agency's entire litigation strategy: use delay and attrition to wear down the elderly plaintiffs and their 70 year old lead attorney, Joseph Rauh. Unfortunately this strategy was aided by the Judge assigned to the Orlikow case who took months to rule on routine motions, and the litigation ground to a halt time after time.
Thus, instead of investigating and answering the detailed factual allegations of our Complaint, the government filed a motion seeking dismissal of the suit on the basis of a group of "boilerplate" defenses -- most prominently, the foreign torts and discretionary function exceptions to the Tort Claims Act, discussed above, and the statute of limitations. Simultaneously, the Agency sought a protective order precluding written interrogatories, oral depositions, document requests and other discovery by the plaintiffs until the Court had ruled on the motion to dismiss the suit.
At this early stage in the litigation -- consideration of a motion to dismiss -- the Court must assume that all factual allegations of the Complaint are true and can only dismiss a suit on legal grounds. After our research in preparing the Complaint, we were confident that none of the boilerplate defenses asserted by the CIA presented a serious threat. Nonetheless, month after month went by and the Judge failed to rule on the CIA's dilatory request for dismissal. During this protracted delay, our initial written interrogatories remained unanswered and oral depositions could not be scheduled. In short, the case was frozen.
How do you get a dilatory Judge to rule? There is no safe way. Among the alternatives are a letter to the Judge (copy, of course, to opposing counsel); a letter to the Judge's superiors (again with a copy to opposing counsel); a letter to the Administrative Office of the Federal Courts (again with the requisite copy), where it will be forwarded to the Chief Judge of the District Court; or seeking a writ of mandamus from the Court of Appeals to compel a ruling. All of these alternatives carry terrible risks of alienating the person who will ultimately decide the case.
After waiting nearly a year for what should have been a simple and obvious ruling in our favor, it was clear that some action had to be taken despite the risks. We decided that the best course was a letter to the Administrator of the Federal Courts pointing out the advanced age of the plaintiffs and the likelihood that this continuing delay would deny them their day in Court. The Administrator forwarded our letter to the Chief Judge of the District Court, and the CIA's Motion to Dismiss was denied within a week. Now we could finally begin discovery.
But in important ways the damage had already been done. Our clients had lived another year uncompensated and during that time we were unable to advance their case. Most significantly, a key witness, who was to be our first deponent, had died during the delay in ruling on the motion to dismiss. During the late 1950s, James Monroe, a retired Air Force Colonel who had studied brainwashed U.S. POW's in Korea, was the Executive Director of the Society for the Investigation of Human Ecology, the CIA front in New York which served as the conduit for Agency funding of the Montreal brainwashing experiments. Now we would never know what Monroe could tell us as the middleman in the CIA's dealings with McGill University and Dr. Cameron.
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Foreword
Our courts serve us best when the law advances the public interest. Occasionally this happens in suits brought solely to protect a private party's personal interest, but more often progress is made through a test case brought and designed to further both public and private goals. Our decade long fight to secure redress for the Canadian victims of CIA brainwashing experiments, Orlikow, et al. v. United States,1 is an example of such a public interest litigation.
But this case involving the CIA goes far beyond the typical public interest litigation precisely because it addresses an area of lawbreaking where normal political and legal remedies are not available. As the late Senator Frank Church concluded, after leading the congressional investigation of the CIA's improper activities in the 1950s and 1960s, that agency was "a rogue elephant" operating outside the law and protected by a shroud of secrecy. This is an account of that rogue elephant's reckless experimentation upon unwitting Canadian citizens, as well as the story of a public interest litigation against an opponent of immense power and dubious purpose.
The forty years since 1950 have been an unprecedented period of national security hysteria fueled by the likes of the Dulles brothers, Joseph McCarthy, J. Edgar Hoover and Richard Helms, and implemented through repressive measures enacted by the state and federal legislatures. In the course of this hysteria, individual liberties have too often been sacrificed in the name of national security. During this period, federal court decisions have occasionally restored liberties and protected traditional constitutional values, but these judicial successes have been few and far between. The clash between liberty and national security has never been as stark as in the inhumane and illegal sponsorship of the Canadian brainwashing experiments by our most powerful national intelligence agency -- an institution that was created to protect and to preserve the very freedoms that were so devastated in those irresponsible experiments. After years of effort, vindication was won through the payment of nearly a million dollars to the CIA's victims by the governments of the United States and Canada in response to the federal suit.
This review of the CIA's actions in the United States and Canada demonstrates how completely unprincipled was the Agency's original brainwashing program, as well as its course of legal manoeuvers years later when it was required to answer for its misconduct. The story of the brainwashing suit and the barriers that were overcome before the CIA's victims were finally compensated, illustrates both the formidable hurdles presented and the unique satisfactions gleaned in a public interest law suit.
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1 682 F. Supp. 77 (D.D.C. 1988) (Civ. No. 80-3163)
I. HOW A PUBLIC INTEREST CASE BEGINS
There is a pattern to the genesis of public interest lawsuits. A great wrong has been or is being done that involves a violation of an important principle. A potential client comes to you with a plea, often nonsense, that "You're the only one who can or will fight to right this wrong." Indeed, this is the pattern that was followed in the initiation of our litigation against the CIA on behalf of the nine victims of brainwashing experiments at a Montreal psychiatric hospital in the late 1950s and early 1960s.
Early in 1979 Canadian Member of Parliament David Orlikow called our office with a horror story that bordered on the incredible. It seemed that some twenty years earlier, David's wife, Val Orlikow, had suffered a bout of depression following the birth of their daughter and had sought help at the leading psychiatric hospital in Canada -- the Allan Memorial Institute at McGill University in Montreal. Under the "care" of the Director of the Institute, Dr. D. Ewen Cameron, Val was su.jected to a number of unorthodox procedures in lieu of generally accepted psychotherapy. In particular, she was given injections of LSD and was exposed to what Dr. Cameron called "psychic driving" -- a procedure used nowhere else in which tape-recorded messages were played hundreds of thousands of times. Not surprisingly, these bizarre procedures did not help Val, but made her condition worse.
It was only in the late seventies that David and Val learned for the first time, from a New York Times story, that Cameron's work had been subsidized by the United States Central Intelligence Agency as part of a secret program to study techniques of brainwashing. The Orlikows wanted to sue the CIA for its part in experiments performed on Val by the now deceased Cameron; they insisted that there was no one else who would take their case and help them right this wrong.
Getting the full story from a potential client is always important, but it is paramount in a public interest litigation, because the suit is brought to advance a principle as well as to vindicate an individual. Concealed pitfalls, half-truths or distortions will inevitably sabotage both objectives. A lesson learned time and again during the McCarthy period is that a public interest lawyer must insist on the whole story, warts and all. McCarthy's victims had to be induced to tell their whole story despite their fears of confiding in anyone, even their own lawyers. We insisted on all the facts in this case before agreeing to represent the Orlikows and other victims of the CIA's Canadian fiasco. From the beginning and throughout the long fight for justice our clients told us the truth. Without this confidence we would not and could not have properly represented them.
II. INVESTIGATION OF THE LAW
Having established the rough contours of the wrong done to the Orlikows and convinced of their credibility, the next step was to determine whether there is some legal basis for liability on the part of the CIA. Clearly Val and David Orlikow had been victims of some specie of tort, but when the government is involved, the courts have historically been reluctant to drain the public treasury to compensate for the misdeeds of government employees. This judicial reluctance is embodied in the doctrine of sovereign immunity, which excuses governmental liability for such torts. Recognizing the unjustness of this broad immunity imported from English common law, Congress in 1946 enacted the Federal Tort Claims Act providing a limited waiver of sovereign immunity for negligent acts of government employees.2 This was our legal basis for suit.
But the Tort Claims Act is a sharply limited basis for liability; the Act does not provide liability for intentional torts, foreign torts, torts by "independent contractors" and torts committed by government employees executing discretionary functions.3 Of these, the foreign torts exception was the most immediately troublesome legal point, because so much of what occurred happened in Montreal outside the United States.4
When the Orlikows came to us, the law of foreign torts was rather unsettled; there had been no definitive interpretation by the Supreme Court and only a few federal court rulings had construed this limitation in the Tort Claims Act. Fortunately, a case was then pending in the District of Columbia Circuit that raised exactly this issue, Sami v. United States.5 We obtained the appellate brief filed by the plaintiff's counsel in the Sami case and agreed with the legal view he argued -- that under the Tort Claims Act that it was the place where the governmental negligence occurred that mattered, not the site where that negligence had its operative impact. After reviewing the Sami brief, we were fairly confident that the D.C. Circuit would eventually construe the Tort Claims Act as covering cases like our's where the negligent acts occurred in the United States but had their damaging impact abroad.6
A second potential problem was that intentional torts are excluded from the Tort Claims Act waiver of sovereign immunity -- we had to plead and to demonstrate negligence for a recovery. Negligence is, of course, largely a question of fact -- what happened, who was careless, who was reckless, who was injured. To make out a prima facie case of negligence, however, one must have an identifiable standard of care that was violated. As a matter of general tort law, a person is required to exercise the prudence of a reasonable person in like circumstances. What that standard means thus depends upon the particular circumstances present in a case.
In our case, a detailed articulation of the duties and responsibilities of those involved in conducting human subject experiments, which was of tremendous public relations value over the course of the suit, was handed to us on a silver platter in the form of the Nuremburg Code. The Nazis' notorious medical experimentation had not only led to the execution of German experimenters after the War Crime Trials at Nuremburg, but resulted in a comprehensive articulation of ethical standards for medical experimentation. These standards explained in great detail the requirements that medical researchers take appropriate measures to protect the health and well-being of their patients who volunteer to undergo experimental procedures. Most importantly, the Nuremburg Code required that the "informed consent" of the patient must be obtained before any experimentation.7 This was our key legal standard for negligence in the failure to secure consent.
Val and David Orlikow were adamant that no one had ever told them of any experiment, much less obtained their consent. This seemed to be the clearest possible violation of the standard of care articulated in the Nuremburg Code. The use of LSD and the brainwashing tapes that Val described were a far cry from any accepted psychiatric therapy and their dangers were certainly well-known to the CIA. Knowingly financing such hazardous experimentation without requiring that Cameron take precautions to protect his patients seemed to be another clear violation of standard of the Nuremburg Code. But the detailed statement of these violations would require more facts than the Orlikows could provide.
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2 28 U.S.C. 1346(b) grants U.S. District Courts "exclusive jurisdiction of civil actions on claims against the United States, for money damages ... for injury or loss of property, or personal injury or death caused by the negligent act or wrongful act or omission of any employee of the Government."
3 Virtually all intentional torts are exempted from Tort Claims Act coverage by 28 U.S.C. 2680(h), which excludes "any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." 28 U.S.C. 2680 excludes "any claim arising in a foreign country." 28 U.S.C. 2680(a) excludes "Any claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused."
4 During the 1950s, the CIA's offices where the Agency's negligence had occurred were located in the District of Columbia, so jurisdiction and venue properly lay in that district (28 U.S.C. 1346, 1402).
5 617 F.2d 755 (D.C.Cir 1979).
6 Things worked out as we had hoped. About two weeks after we filed our Complaint in the Orlikow case, the D.C. Circuit handed down its decision in Sami. In that decision, our Court of Appeals ruled that it was the place where the governmental negligence occurred, not the place of the injury, that was controlling. 617 F.2d 755, 761-63 (D.C. Cir. 1979). We could now rely on the Sami decision and its gloss on the foreign country exception as the controlling precedent in our case.
7The voluntary consent of the human subject is essential. This means that the person involved should have the legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, over-reaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the subject matter involved as to enable him to make an understanding and enlightened decision.... The duty and responsibility for ascertaining the quality of the consent rests upon each individual who initiates, directs, or engages in the experiment. It is a personal duty and responsibility which may not be delegated to another with impunity.
United States v. Brandt (The Medical Case), II Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, at 181-82 (1949).
III. INVESTIGATION OF THE FACTS
In some respects, we were lucky in developing the facts needed to make out a case, because much of the legwork had already been done by journalists and Congressional investigations. In 1975 the Rockefeller Commission and the Senate Intelligence Committee had investigated the CIA's domestic abuses and issued detailed reports on them. Most importantly, in 1977 an enterprising author, John Marks, had forced public disclosure under the Freedom of Information Act of thousands of pages of CIA documents that had not been available to the earlier investigations. These documents, which consisted largely of financial records that had been missed in 1973 when the vast bulk of such materials were destroyed, provided an overview of a top secret CIA program of behavior control and brainwashing experiments code-named MKULTRA.8
With the assistance of researcher Jay Peterzell and the Center for National Security Studies, Marks interviewed CIA-funded researchers, former CIA officers and victims of the MKULTRA to piece together the remarkable story of the CIA experiments in the U.S. and Canada. Marks' award-winning book 9 was the culmination of this effort. Marks agreed to give us free access to his files and Peterzell agreed to work with us in developing the facts. Both resources were invaluable.
In others respects, we faced tremendous obstacles. The trail was over twenty years old. Potential witnesses had died, memories had faded and the surviving victims' health had deteriorated. Despite Marks' success under the Freedom of Information Act, the vast majority of MKULTRA documents had been destroyed. And the defendant was an agency trained in misdirection and steeped in deception. Nonetheless from Congressional hearings and reports, the surviving CIA documents, and the Marks files, we were able to substantiate the following basic facts about the case.
A. Genesis of the MKULTRA Program and the CIA's Negligence in the Death of Dr. Frank Olson.
In the early 1950s the CIA reaction to the unprecedented confessions of U.S. POW's in Korea was one of panic that the Communists had discovered an effective method of "brainwashing" our soldiers. The response was an intensive research and development program code-named "MKULTRA." It was in April of 1953 that Richard Helms, then the head of the CIA's Operations Directorate, recommended that the Agency explore covert brainwashing techniques for offensive and defensive use, to counter the suspected Soviet and Chinese efforts in that area. CIA Director Allen Dulles promptly approved the MKULTRA Program which was to operate outside the usual CIA administrative channels without "the usual contractual arrangements," and to be highly "compartmented." Dulles also ordered that "exacting control will be maintained over the Project by TSS."10
Proving negligence was essential to our Tort Claims Act case, and our starting point was the story of the CIA's role in the death of Dr. Frank Olson in an early MKULTRA drug experiment. The Olson tragedy is relevant because it occurred three years prior to the CIA funding of the experiments in Montreal and involved the two key Agency officers who approved that funding -- Sidney Gottlieb and Robert Lashbrook.
In November of 1953, Gottlieb and Lashbrook were directly responsible for an LSD test that preceded the death of Dr. Olson, an Army chemical and biological warfare expert, who had no forewarning that he was to be made an experimental subject. After receiving LSD surreptitiously administered in a glass of cointreau, Dr. Olson suffered a severe depression, was taken by Lashbrook to New York City for consultations with an allergist named Harold Abramson, who had been testing LSD for the CIA as an MKULTRA researcher. Without ever being taken to see a psychiatrist or, indeed, any physician who was independent of the CIA, Dr. Olson fell to his death from the window of a tenth story room he shared with Lashbrook at the New York Statler Hotel.
Although the CIA was able to cover up its responsibility for the Olson death, Dulles ordered an investigation by his General Counsel, Lawrence Houston, who concluded that there had been "culpable negligence" by the CIA officials in charge of MKULTRA and "a death occurred which might have been prevented."11 CIA Inspector General Lyman Kirkpatrick, who also reviewed the Olson tragedy at Dulles' request, recommended that there "should immediately be established a high-level intra-Agency board which should review all TSS experiments and give approval in advance to any in which human beings are involved." Kirkpatrick also recommended that the CIA employees involved in the Olson death should be reprimanded.
Despite these conclusions and recommendations, Gottlieb and Lashbrook continued their activities unreprimanded and unsupervised. Indeed, we had further evidence of the CIA's negligence in the subsequent findings of its CIA Inspector General in 1957 that some of the MKULTRA activities "are considered to be professionally unethical and in some instances border on the illegal" and "are not only unorthodox but unethical and sometimes illegal."12 The CIA's failure to take appropriate measures to curb Gottlieb and Lashbrook despite these repeated findings is precisely the kind of negligent omission contemplated by the Tort Claims Act, and seemed to be one sound ground for liability.
B. CIA Negligence in the Funding of the Montreal Experiments
Early in 1957, Dr. D. Ewen Cameron, Director of the Allan Memorial Institute in Montreal, submitted a formal grant application to the "Society for the Investigation of Human Ecology" a CIA front operating at the Cornell University Medical School in New York City. That application proposed to extend brainwashing experimentation which Cameron described as follows:
i. The breaking down of ongoing patterns of the patient's behavior by means of particularly intensive electroshocks (depatterning).
ii. The intensive repetition (16 hours a day for 6 or 7 days) of the prearranged verbal signal.
iii. During this period of intensive repetition the patient is kept in partial sensory isolation.
iv. Repression of the driving period is carried out by putting the patient, after the conclusion of the period, into continuous sleep for 7-10 days.
Cameron also proposed to test drugs such as "LSD 25 and other similar agents" in "depatterning" his patients and to experiment with new methods of "inactivating" the patient during the repetition of verbal signals with other drugs including curare, a drug used in surgery to temporarily paralyze a patient's involuntary muscles.
Cameron's application for funds was dated January 21, 1957 and on February 26, 1957 Gottlieb and other CIA officials approved the application in a Memorandum that simply repeats, without reasoning or explanation, the application virtually in haec verba. Shortly thereafter, Gottlieb's deputy, Lashbrook, approved the first payment to Cameron. Despite the CIA General Counsel's explicit criticism of the "culpable negligence" in the Olson death on the part of Gottlieb and Lashbrook, they called the shots at the Agency on the Cameron application, which was not even reviewed by the CIA own Medical Staff.13
In all, the CIA provided some $60,000 over four years for the experiments described in the Cameron application. At no point in any of the surviving CIA documents is the slightest concern expressed for the rights or well-being of the subjects of these CIA-funded experiments. The casual indifference to Cameron's patients exhibited throughout the CIA's documentary record, particularly after the disastrous Olson LSD experiment, simply reeked of negligence.
C. CIA Negligent Funding of Experiments on Unwitting Subjects
The unambiguous standards for medical experimentation formalized at Nuremburg nearly a decade before the CIA subsidies to Cameron specifically required that "informed consent" be obtained from subjects in medical experimentation. Val and David Orlikow swore that they had never consented to any experimentation at the Allan Memorial Institute and, indeed, the Institute's medical records contained only a telegram from David authorizing Val's admission "for treatment."
The documentary evidence from the CIA contained no mention whatsoever of using volunteers, and it was clear from the application Cameron had submitted that experimental subjects would be drawn from the patient population of the Allan Memorial Institute. Finally, the use of non-volunteers was the modus operandi of the MKULTRA program and its two chief operatives, Gottlieb and Lashbrook; this practice was strongly criticized by two CIA Inspectors General during the late 1950s and early 1960s.14 This strong circumstantial evidencecorroborated the Orlikows' story, strengthened this third aspect of the CIA's negligence in funding the experiments in Montreal.
* * * * *
From each of these three perspectives -- leaving those responsible for Dr. Olson's death in charge of MKULTRA, financing extraordinarily dangerous experiments without taking any precautions, and experimenting upon unwitting, non-volunteer subjects -- it appeared to be a sound prima facie case. But there was one question that we could not answer: Did Cameron know he was working for the CIA? On the one hand there was an express notation in an MKULTRA file that Cameron and his staff were to remain unwitting of their CIA sponsorship.15 On the other hand there was Cameron's history as a trusted consultant to the U.S. Government who had evaluated Rudolf Hess' competence tostand trial at the end of World War II, and Cameron's peculiar application for funding to the CIA front, which seemed to have less to do with psychiatric therapy than with brainwashing experimentation.
We asked our first expert, Dr. Leon Salzman, an eminent psychiatrist who had practiced and taught in Washington and New York since the 1940s, to review the Cameron application and Val Orlikow's medical records and to discuss them with us. Dr. Salzman was direct and emphatic, in his expert opinion the application proposed experiments clearly tailored to explore techniques of "brainwashing," and the bizarre combination of procedures offered little if any hope of helping Cameron's patients. Indeed Dr. Salzman's insight was confirmed by the public admission of Cameron's technical assistant, Leonard Rubenstein, in an August 2, 1977 New York Times interview that the work Cameron did with CIA funds "was directly related to brainwashing." Rubenstein explained:
They hadinvestigated brainwashing among soldiers who had been in Korea. We in Montreal started ... brainwashing patients instead of using drugs.
Unfortunately all of this was circumstantial. Because Cameron was dead, a definitive answer to the question "what he knew and when he knew it" vis-à-vis his CIA subsidies was likely impossible.
But did it matter whether Cameron knew that the CIA was paying him? Focusing on Cameron's knowledge was looking through the wrong end of the telescope. For purposes of suing the CIA, what mattered was what the CIA knew. On that score, the record couldn't be clearer. Cameron's application set out the experiments in detail and the CIA authorized subsidies for that experimentation. Finally, as Val Orlikow's hospital records made clear, the CIA got what it paid for. Whether Cameron was a witting accomplice or a unknowing dupe was beside the point. < P>
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8 We later learned when deposing former CIA officer Robert Lashbrook that each of these financial documents were "deliberately written so it would reveal a minimum." Only 56 pages of even these highly sanitized financial records concerning the Montreal project were provided to us by the CIA in discovery.
9 J. Marks, The Search for the "Manchurian Candidate": The CIA and Mind Control (1977).
10 TSS is the abbreviation for Technical Services Section, the CIA component responsible for MKULTRA, which a few years later became the Technical Services Division or TSD. The "MK" in "MKULTRA" denotes that the program was conducted by the Technical Services Division.
11 Houston's detailed conclusions were particularly damning:
I am not happy with what seems to me a very casual attitude on the part of TSS representatives to the way this experiment was conducted and to their remarks that this is just one of the risks running with scientific experimentation. I do not eliminate the need for taking risks, but I do believe, especially when human health or life is at stake, that at least the prudent reasonable measures which can be taken to minimize risk must be taken and failure to do so is culpable negligence. The actions of the various individuals concerned when the effects of the experiment on Dr. Olson became manifest also revealed the failure to observe normal and reasonable precautions.... As a result a death occurred which might have been evented....
12 Final Report of the Senate Select Committee to Study Governmental Operations with respect to Intelligence Activities, S. Rep. No. 94-755, 94th Cong., 2d Sess. Book I, at 394, 410 (1976).
13 The former Chief of the CIA's Medical Staff, Dr. Edward Gunn, testified in 1975 Senate Hearings:
Dr. Gunn. From 1955 to approximately 1959 or 1960, there was at least once a year a meeting that was held with the head of that office. But we never saw more than some very general outline that there was such a research program. We never saw the direct material for a program. We had offered to assist TSD by providing medical support and guidance, but it was always "thank you very much."
Senator Kennedy. Were you satisfied that Dr. Gottlieb's group was adequately protecting its subjects?
Dr. Gunn. From the standpoint of the Office of Medical Services, we could not, no, because we did not know what they were doing.
Biomedical and Behavioral Research: Joint Hearings before the Subcomm. on Health of the Senate Comm. on Labor and Public Welfare and Subcomm. on Administation, Practice and Procedure of the Senate Comm. on the Judiciary, 94th Cong., 1st Sess. 259 (1975).
14 Similar concerns were voiced during the mid-1970s, with key CIA officials, such as the Deputy Director for Science and Technology Carl E. Duckett admitting at U.S. Senate hearings that the CIA unwitting drug tests were "wrong" and with the Senate Intelligence Committee concluding that compartmentation was used in the MKULTRA Program to conceal the "unethical and illicit activities" by the CIA. As the Senate Intelligence Committee stated:
Few people, even within the agencies, knew of the programs and there is no evidence that either the executive branch or Congress were ever informed of them. The highly compartmented nature of these programs may be explained in part by an observation made by the CIA Inspector General that, "the knowledge that the Agency is engaging in unethical and illicit activities would have serious repercussions...."
Final Report of the Senate Select Committee to Study Governmental Operations with respect to Intelligence Activities, S. Rep. No. 94-755, 94th Cong., 2d Sess. Book I, at 385-86 (1976).
15 In view of the CIA's overwhelming desire to protect MKULTRA researchers from embarrassment when the Agency's role became public --indeed the CIA successfully fought a Freedom of Information Act all the way to the Supreme Court to prevent even the names of some MKULTRA researchers from being made public, Central Intelligence Agency v. Sims, 471 U.S. 181 (1985) -- we did not view this notation as particularly credible. Such a covering of the trail would be entirely consistent with protecting Cameron rather than reflecting what actually happened and who knew what.
IV. DECIDING TO TAKE A PUBLIC INTEREST CASE
Deciding whether to proceed with a public interest case requires a lawyer to answer four questions. Will the suit advance a public interest? Is that interest an important one? Can you afford to take the case? And, can you win? Our answer to each of these questions in the CIA brainwashing case was, rather obviously, "yes," but again the considerations that led to that conclusion illustrate the unique nature of a public interest litigation.
A. Defining a "Public Interest"
There are probably as many different definitions of the "public interest" as there are people who think about the concept. We certainly make no claim of being able to define any single position that is the public interest, and do not believe that there is any objective standard for doing so. But the absence of an objective standard does not relieve the ethical lawyer from a professional responsibility to advance the public interest -- as he or she sees it. For example, there are those who honestly believe abortion is murder, while others are adamant that a woman has an absolute right to control her own body and to end an unwanted pregnancy. According to their own view, each side is fighting for the public interest. Just because other people may argue with your conclusion about where the public interest lies does not mean that you are excused from thinking and acting to promote the public interest.
Here, at least employing our own subjective standard, the public interest seemed clear: "the CIA is not above the law." The rule of law is a cornerstone to our democratic system of government; holding the executive branch legally accountable in the courts is a key means of protecting our civil freedom. Vindicating this principle and extending it to the most secret and deceptive part of the federal government would be a significant stride in advancing the public interest. We concluded that the Orlikow case presented an ideal vehicle for reasserting this important principle.16
B. Assessing the Importance of a Public Interest
The importance of securing judicial accountability for the CIA was demonstrated time and again, both before and during the litigation. In the words of the late Senator Frank Church, who led the congressional investigation of the CIA's improper and unlawful actions, that agency was "a rogue elephant" in the 1950s and 1960s operating above the law and out of control as it plotted assassinations, illegally spied on thousands of Americans, and even drugged our own citizens in its effort to develop new weapons for its covert arsenal. When those actions were exposed by the congressional committees in the 1970s, the CIA showed some disposition for reform, but those reforms were embodied in internal CIA regulations and Executive Orders, and were thus subject to change whenever a new administration entered office or a new CIA Director took over. We believed that using the Tort Claims Act to secure compensation in a court of law for the CIA's victims would not only complete the public repudiation of these abuses, but would also extend the rule of law to the CIA and serve as a concrete deterrent to future abuses.
Moreover, in the Canadians' case, instead of admitting its wrongdoing and accepting responsibility, the CIA chose simply to ignore the plight of its victims. The importance to all Americans of curbing this continued arrogance by a secret agency of our government could hardly be overstated. We felt that judicial accountability for these past abuses could help to do so.
Finally while the suit was underway, there was a return to business as usual at the CIA. The reforms of the 1970s became dead letters in the 1980s as new Executive Orders and attitudes allowed the CIA to veil more of its activities in a cloak of secrecy, and then CIA Director William Casey adopted an "anything goes" attitude. This had a predictable impact on the Agency, which no longer felt the restraints of the 1970s and returned to the days of the rogue elephant, advising Central American guerrillas that assassinations are appropriate, sponsoring covert wars throughout the world, and hiding illegal activities behind claims of national security. In short, the CIA was again operating outside the law. Throughout the court fight, these continuing examples of CIA lawlessness reinforced our conclusion that judicial redress was an important means of forcing some restraint upon this Agency's threat to the rights of human beings at home and abroad.
C. "Winability"
The question of whether a public interest case can be won is particularly important because a loss is not only a defeat for the plaintiff but also for the principle. With the documents obtained by John Marks as support, there seemed little question that factually we were on firm ground. As to the law, one should not be faint-hearted. We thought that the pending Sami case offered a way around the foreign country exception, and indeed as the suit unfolded, that most difficult potential legal problem evaporated. More important legally was the Nuremburg Code which provided a codified ethical standard that the CIA could scarcely shrug off. All together it looked like a winner.
In addition, David Orlikow's stature as a respected Member of the Canadian Parliament gave us reason to expect the support of the Canadian Government in the fight. This was an important consideration. We expected that the Canadians would resent an ally who used their citizens as unwitting guinea pigs in brainwashing experiments, and that Canada's support for its citizens would strengthen our hand in seeking prompt recompense by the CIA. These expectations, sadly, were never realized.
D. Affordability
The decision to take a public interest case brings with it a commitment to see the matter through to its conclusion. Neither the Orlikows nor any of the other Canadian victims were in a position to pay us to bring the suit, so a contingency fee under the limitations of the Tort Claims Act was the only option. Although this would mean a long wait for legal fees, if any, we were sufficiently convinced of the importance of this case and its winability to take the case on this basis. In addition, discovery costs would be large, but we were prepared to advance some of those costs from our firm's funds and to seek support from foundations to pay the remainder.17 For better or worse, we decided to go forward.
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16 The recent spectacle of Col. Oliver North's covert actions and the Reagan Administration's widespread disdain for this critical principle underscores the need to bring some measure of accountability to those engaged in clandestine activities.
17 In addition to our own funds, litigation costs, which eventually exceeded $60,000, were defrayed by two grants of $20,000 awarded by the J. Roderick MacArthur Foundation through the American Civil Liberties Union, funds raised by David Orlikow and other concerned Canadians, and support provided by the Mental Health Law Project.
V. EFFORT TO SETTLE BEFORE SUIT
Before any lawsuit can be filed under the Tort Claims Act, an administrative claim must be presented to the federal agency that was negligent, which gives the government a chance to settle the case. During 1979, we submitted administrative claims on behalf of Val Orlikow and two other Canadian victims -- Jean Charles Pagé and Robert Logie -- and were somewhat encouraged by the response of CIA General Counsel Daniel B. Silver. On October 11, 1979, Silver wrote us that "the policy of CIA is not to shirk responsibility for the unfortunate acts that occurred in the course of the MKULTRA program," and that he found the experimental research conducted by Dr. Cameron "repugnant."
Nonetheless, when we sought to settle our clients' claims prior to suit, the CIA refused to negotiate on the ground that Cameron's application for funds was "unsolicited." This claim, even if true, seemed legally irrelevant to us. After all, the CIA knew what the experiments would involve and voluntarily provided funds for them. Whether the CIA or Cameron initiated the contacts did not seem to us to have any bearing on the CIA's liability.
But as it turned out, the CIA General Counsel's version of what had happened was untrue -- CIA representatives had gone to Cameron and solicited the application. As we detail below this falsehood, which was even repeated in defendant's formal Answer to our Complaint, was exploded in discovery when retired CIA officer John W. Gittinger told the truth at his deposition -- that he and the CIA had initiated the contacts with Cameron. Despite the fact that Gittinger was well-known within the CIA as having been involved in MKULTRA and was identified in Agency documents as the "Project Monitor" for the McGill experiments, the CIA lawyers didn't even bother to check their facts with him before asserting this groundless defense.
In any event the CIA refused to negotiate settlement, which raised a new legal problem. Our correspondence with the General Counsel contained valuable admissions by the CIA. Could we use these settlement documents in our case? Although Federal Rule of Evidence 408 precludes the admission in court of "[e]vidence of conduct or statements made in compromise negotiations," there is no legal bar upon using such admissions in public debate. Moreover, where the government has relied upon patently spurious grounds for refusing to settle a claim, it is entirely proper to disclose its erroneous position when presenting the evidence that disproves it.
In addition, the Tort Claims Act requires claimants to exhaust administrative remedies by presenting their claims to the Agency involved. Because of this requirement, we were able to include in court documents both the General Counsel's admissions and the false basis for refusing to discuss settlement. In this way, normally excluded evidence played a role in the factual development of the Orlikow case.
VI. PREPARATION OF COMPLAINT
At the same time we were engaged in our pre-litigation effort to settle with the CIA, we were also working hard on the eventual complaint in the case. These two jobs were complementary, since information obtained in the negotiations, such as they were, contributed to the factual development of our case, and the disciplined articulation of legal theories in a formal document aided in our presentation of our clients' claims to the CIA. By the time that we had received the final denial of our clients' claims -- a prerequisite for suit under the Tort Claims Act -- we had nearly completed a detailed complaint.
A. Pleading Facts Consistent with Coverage of the Tort Claims Act
As we have noted, the Tort Claims Act only waives sovereign immunity for torts sounding in negligence. Intentional torts such as assault and battery are not bases for liability under that statute. This limitation posed a potentially significant problem for us, because torts based on medical malpractice, particularly those involving a failure to secure consent, had originally evolved from assault. There was an important distinction in our case, however -- we were seeking recovery from the CIA, not an incompetent physician. Throughout our development of the case we continually tried to keep the focus of debate on the Agency and its recklessness, a strategy that was happily consistent both with our clients' private interests in financial recompense and the public interest in forcing judicial accountability upon the CIA.
Our investigation of the facts already on the public record had provided a wealth of evidence of the CIA's negligence. Now, aided immeasurably by the unique conceptual insights of our partner, John Silard, we formulated our clients' claims in three categories:
i. Negligent failure to supervise -- the Olson count;
ii. Negligent funding of extra-hazardous experimentation -- the brainwashing count; and
iii. Negligent funding of experimentation on patients who had not volunteered to be experimental subjects -- the Nuremberg count. The final complaint set out these three negligence counts and, with John's brilliant drafting, skillfully avoided the intentional tort exception. Indeed by articulating the wrong in this fashion, an intentional tort defense was practically untenable -- the CIA was in no political position to insist that its torts against our clients were intentional, not negligent.
B. Developing Factual Evidence Corroborating Plaintiffs' Claims
Because the case was so unusual and the underlying facts were so complex, our complaint contained a wealth of detailed allegations concerning the MKULTRA program and the CIA.18 In addition to the facts concerning the MKULTRA program that we have summarized above, we provided details concerning the three Canadian victims who we then represented. Using facts gleaned from their Allan Memorial Institute medical records we were able to confirm that our clients had indeed been subjected to experimentation as described in the Cameron application to the CIA "front."
These records showed that Val Orlikow, who sought treatment for depression, instead had been subjected to many months of "psychic driving" and 16 LSD trips. Jean-Charles Pagé, who entered the Allan Memorial Institute for treatment of alcoholism, was "depatterned" with and became addicted to powerful barbiturates, and was placed in "continuous sleep" for thirty-six days. Robert Logie, who came to the hospital for treatment of leg pains that were incorrectly diagnosed as psycho-somatic, was depatterned with intensive electroshocks and LSD, and subjected to drug-induced sleep for a period of twenty-three days.19
Other victims came forward and joined the suit over the next two years until there were nine in all. The Allan medical records confirmed that the six additional patients we came to represent had also been victims of the brainwashing experimentation during the period of CIA funding. Jeanine Huard, who also sought treatment for depression, was depatterned with intensive electroshocks and drugs, and subjected to psychic driving. Lyvia Stadler, another patient suffering from depression, was subjected to depatterning, psychic driving and prolonged drug-induced sleep. Dr. Mary Morrow, an intern who was admitted to the Allan Memorial after being told by Cameron that she needed "rest," was depatterned with intensive electroshocks and barbiturates. Rita Zimmerman, who sought treatment for alcoholism, was depatterned with 30 electroshock sessions until in Cameron's words she was "incontinent of stool on occasion." Mrs. Zimmerman was also subjected to over a month of psychic driving and some 56 days of drug-induced sleep. Florence Langleben, who sought treatment for anxiety attacks, was depatterned with LSD and intensive electroshocks, and subjected to over a month of psychic driving and some 43 days of drug-induced sleep.
The story of the last of the nine plaintiffs, Louis Weinstein, is perhaps the most stark example of the devastating impact these brainwashing experiments had upon the innocent Canadian victims. At the hospital he was subjected to depatterning with intensive electroshock and LSD, months of psychic driving (sometimes in "sensory isolation" where all he could perceive was the taped messages), and prolonged drug-induced sleep. A successful and prosperous Montreal businessman when he entered the Allan Memorial Institute for treatment of anxiety, Mr. Weinstein lost his business and was unable ever again to support his family.20
In addition, the nine victims, most of whom were by then elderly and frail, never consented to participate in any form of experimentation. David Orlikow sent a telegram authorizing his wife's admission "for treatment." Janine Huard, Mary Morrow, Rita Zimmerman, and Louis Weinstein signed standard hospital admission forms entitled "consent for examinations and treatments." The medical records of the other victims did not contain even such a consent for treatment. The nine and their families could not remember ever being told that they were the subjects of experiments for research or any other purpose, and they were sure that none of them had ever volunteered to be subjects in any experiments or research.
On December 11, 1980 we filed our Complaint against the CIA under the Tort Claims Act.
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18 Of these hundreds of detailed allegations, only one was not confirmed in subsequent discovery and that allegation had been made on "information and belief"; we had guessed wrong about a name excised from a CIA document released to Marks.
19 The intensive electroshocks used in these experiments are not the same form of ECT used routinely in the treatment of patients suffering from depression. Both the voltage and the number of shocks administered were greatly increased. Instead of stopping after the procedure had induced one grand mal seizure, subjectswere shocked again and again until no further seizures could be elicited. There is no question that this was a profoundly intrusive and destructive form of electroshock, which was far different in kind from that which was conventionally used for therapeutic purposes.
20 The story of the tragic disruption of a family's life is movingly recounted by Louis Weinstein's psychiatrist son, Harvey, in H. Weinstein, A Father, a Son and the CIA (1988).
VII. DILEMMA WITH A JUDGE WHO WON'T DECIDE
The CIA's first response to the suit by the Canadians was a harbinger of the Agency's entire litigation strategy: use delay and attrition to wear down the elderly plaintiffs and their 70 year old lead attorney, Joseph Rauh. Unfortunately this strategy was aided by the Judge assigned to the Orlikow case who took months to rule on routine motions, and the litigation ground to a halt time after time.
Thus, instead of investigating and answering the detailed factual allegations of our Complaint, the government filed a motion seeking dismissal of the suit on the basis of a group of "boilerplate" defenses -- most prominently, the foreign torts and discretionary function exceptions to the Tort Claims Act, discussed above, and the statute of limitations. Simultaneously, the Agency sought a protective order precluding written interrogatories, oral depositions, document requests and other discovery by the plaintiffs until the Court had ruled on the motion to dismiss the suit.
At this early stage in the litigation -- consideration of a motion to dismiss -- the Court must assume that all factual allegations of the Complaint are true and can only dismiss a suit on legal grounds. After our research in preparing the Complaint, we were confident that none of the boilerplate defenses asserted by the CIA presented a serious threat. Nonetheless, month after month went by and the Judge failed to rule on the CIA's dilatory request for dismissal. During this protracted delay, our initial written interrogatories remained unanswered and oral depositions could not be scheduled. In short, the case was frozen.
How do you get a dilatory Judge to rule? There is no safe way. Among the alternatives are a letter to the Judge (copy, of course, to opposing counsel); a letter to the Judge's superiors (again with a copy to opposing counsel); a letter to the Administrative Office of the Federal Courts (again with the requisite copy), where it will be forwarded to the Chief Judge of the District Court; or seeking a writ of mandamus from the Court of Appeals to compel a ruling. All of these alternatives carry terrible risks of alienating the person who will ultimately decide the case.
After waiting nearly a year for what should have been a simple and obvious ruling in our favor, it was clear that some action had to be taken despite the risks. We decided that the best course was a letter to the Administrator of the Federal Courts pointing out the advanced age of the plaintiffs and the likelihood that this continuing delay would deny them their day in Court. The Administrator forwarded our letter to the Chief Judge of the District Court, and the CIA's Motion to Dismiss was denied within a week. Now we could finally begin discovery.
But in important ways the damage had already been done. Our clients had lived another year uncompensated and during that time we were unable to advance their case. Most significantly, a key witness, who was to be our first deponent, had died during the delay in ruling on the motion to dismiss. During the late 1950s, James Monroe, a retired Air Force Colonel who had studied brainwashed U.S. POW's in Korea, was the Executive Director of the Society for the Investigation of Human Ecology, the CIA front in New York which served as the conduit for Agency funding of the Montreal brainwashing experiments. Now we would never know what Monroe could tell us as the middleman in the CIA's dealings with McGill University and Dr. Cameron.
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