Winning the War of Words

A federal judge has ruled that a CIA agent identified only as “Doe,” allegedly fired after he gathered prewar intelligence showing that Iraq was not developing weapons of mass destruction, can proceed with his lawsuit against the CIA. The judge has ordered both parties to submit discovery requests–evidence they want for their case–to be completed by March 15, according to the CIA agent’s lawyer and a spokesman for the Justice Department, which is defending the CIA in court.

U.S. District Judge Gladys Kessler issued her ruling after what Doe’s attorney, Roy Krieger, described as an extraordinary, secret status conference by telephone this afternoon that lasted nearly a half an hour. So concerned was the CIA about the agent’s identity becoming public that the Justice Department prevailed upon the judge to issue a highly restrictive order regarding press contacts by the agent and Krieger. The order barred them from “requesting, allowing, encouraging, or directing” any members of the media from appearing at Krieger’s office or even within a two-block vicinity of the building where he works or of any other location of the status conference, until two hours after the conference was completed.

Krieger and his client were also barred from notifying the media ahead of time about the status conference or its location. The judge sealed her order until 2 p.m. today.

“They are worried about his photograph being taken or his likeness being sketched,” Krieger told U.S. News, “because if his appearance became public, we are told we will lose one of our most valued assets because [the asset has] been publicly associated with him.”

At the hearing, Krieger said, Justice Department attorney Marcia Tiersky told Kessler the department wanted to file a motion for summary judgment, leading to dismissal of the case, before discovery commenced. In response to Kessler’s request for a basis for summary judgment, according to Krieger and the Justice Department, Tiersky said that the department would produce affidavits in support of the move. But the judge, indicating that she viewed this as a delaying tactic, said she would allow the discovery process to begin.

This is the second setback for the government in this case. In January, Kessler decided on technical grounds that the CIA employee’s lawsuit could not be dismissed. However, the judge did not rule on the agent’s central claim that he was fired because he refused to alter intelligence that contradicted the Bush administration’s central rationale for the war in Iraq. In that earlier ruling, Kessler said that the covert agent could plausibly argue that his firing was based on allegedly false information placed in his personnel file. Krieger said that his client had gathered intelligence from several countries in the Middle East, including Iraq.