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The Central Intelligence Agency has been denied use of the “state secrets privilege” to dodge the first major racial discrimination lawsuit brought by one of its operations officers, according to a decision recently unsealed by a Virginia federal court. The suit, Sterling v. Tenet, No. 01 Civ. 8073 (AGS) (S.D.N.Y.), was filed in August 2001 by Jeffrey Sterling, a 34-year-old African-American who worked undercover for the CIA. But the CIA isn’t giving up the fight. Sterling’s suit has been transferred to the Eastern District of Virginia-the home turf of the CIA-which recently ordered the New York federal court’s decision unsealed. The CIA has filed another motion to argue the state secrets privilege, according to the plaintiff’s lawyer, who said he is hopeful that the Virginia court will follow the earlier ruling in New York. Sterling had trained in the agency since 1993, learning to speak Farsi in preparation for assignments to recruit Iranian spies. Sterling alleges in his suit that after months without an assignment, he finally protested to a supervisor in 1997, and was told that a “big black man speaking Farsi” drew too much attention to the agency’s covert Iranian operations. Sterling’s lawsuit accuses the CIA of using retaliation tactics to intimidate him. He claims they arbitrarily initiated “security processings,” which subject an agent to a security investigation, when he wasn’t due for one for several years. The CIA has said that Sterling was terminated in 2002 for failing to accept new assignments. ‘State secret’ The agency filed a motion to dismiss the suit, invoking the state secrets privilege to assert that sensitive information revealed by the lawsuit will jeopardize national security. In January, the U.S. District Court for the Southern District of New York rejected the CIA’s argument. In a then-unpublished decision, the court reasoned that use of the privilege is inappropriate in this case. It relied heavily on the 2d U.S. Circuit Court of Appeals decision in Ellsberg v. Mitchell, 709 F.2d 51, 56-57 (2d Cir. 1983), that said the absolute and broad sweeping power of the privilege must not be lightly invoked and that “whenever possible, sensitive information must be disentangled from nonsensitive information.” Sterling’s attorney, Mark Zaid of Krieger & Zaid in Washington, said the decision thwarts the CIA’s attempt to use secrecy as a shield. “It’s positive for any plaintiff bringing a case against a national security establishment because it helps to beat back the government’s attempt to dismiss a case outright,” he said. Assistant U.S. Attorney David Kennedy, who argued the CIA’s position, did not return calls seeking comment. In an e-mail response, a spokesperson for the CIA said it would not comment on pending litigation. The U.S. attorney’s office in Alexandria, Va., is now overseeing the CIA’s defense. Calls to assistant U.S. attorneys William Howard and Richard Parker were not returned. There have been previous racial discrimination lawsuits against the CIA, Zaid noted, but to the best of his knowledge, Sterling’s is the first by an operations officer. Most of the suits are either settled, or are handled administratively in the office of Equal Employment Opportunity Commission. A monetary settlement with the CIA could be the likely outcome of Sterling’s lawsuit, Zaid said. In addition to the Title VII of the 1964 Civil Rights Act suit, Sterling has another action pending against the CIA over his First Amendment rights to publish his memoirs. Roots to ‘Reynolds’ The doctrine of state secrets, the highest form of executive privilege, was established 50 years ago in U.S. v. Reynolds, 345 U.S. 1 (1953), a lawsuit brought by the widows of three civilian engineers killed in the 1948 crash of a B-29 airplane in Waycross, Ga. [NLJ, June 16]. In light of declassified documents, the lone surviving widow petitioned the U.S. Supreme Court in March, claiming that the U.S. Air Force lied half a century ago when it said the accident report on the crash contained military secrets. In re Patricia J. Herring, No. 02-M76. The high court, however, denied the widow’s petition. Despite the high court’s denial, the Reynolds case can still be used by plaintiffs’ lawyers to persuade courts to limit the state secrets privilege, Zaid said. The case illustrates the subjectivity of the government in deeming what is “privileged” and the need for the careful impartiality of the court. McAree’s e-mail address is [email protected].

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