The opinion of the court was delivered by: GESELL
As a condition of his employment with the CIA, Agee entered into a Secrecy Agreement with that agency which limited his right to disclose intelligence information. Alleging that the agreement had been violated and that Agee threatened to violate it again in the future, the United States intervened in this Freedom of Information Act suit. It seeks an order that would return to the Government all sums earned by Agee from certain prior writings disseminated in violation of the Secrecy Agreement and to enjoin further breaches of the agreement. The matter is before the Court on cross-motions for summary judgment which were fully briefed and argued.
Two essential facts are undisputed. Agee does not deny that he has published books containing intelligence information relating to CIA activities without prior submission to the agency and in violation of the Secrecy Agreement,
nor does he deny that he intends to continue his work as an author and journalist, writing on intelligence activities, without complying with the Secrecy Agreement. Moreover, the validity of the standard Secrecy Agreement which Agee executed has been strongly upheld in a recent decision of the Supreme Court, Snepp v. United States, 444 U.S. 507, 100 S. Ct. 763, 62 L. Ed. 2d 704 (1980).
Opposing the proposed order vigorously, Agee offers two affirmative defenses. First, he asserts that the United States comes before this Court with "dirty hands" and should not be granted the equity relief sought. Second, he contends that he is the victim of impermissible "discriminatory enforcement" because the United States has allegedly chosen to litigate against him on the basis of the content of his writings, an impermissible criterion for government action, while choosing not to prosecute individuals whose writings are not so unfavorable to the Agency.
Agee's "dirty hands" argument lacks merit. In a lengthy affidavit, Agee recites a litany of supposed wrongs allegedly perpetrated by government representatives against plaintiff beginning in 1971, three years after plaintiff left the CIA and about the same time that plaintiff began his activities against the agency. But even if these wrongs occurred, which is disputed, they would not foreclose the relief sought by the United States here. In invoking the "dirty hands" doctrine, it is necessary that the wrongs complained of have a close nexus to the cause of action. See, e.g., Keystone Driller Co. v. General Excavator Co., 290 U.S. 240, 245, 54 S. Ct. 146, 147, 78 L. Ed. 293 (1933); Neal-Cooper Grain Co. v. Kissinger, 385 F. Supp. 769, 778 (D.D.C.1974). There is no such nexus here. Plaintiff had long since left the agency when these incidents occurred and the alleged wrong-doing by the agency since 1971 is not sufficiently related to Agee's failure to comply with the Secrecy Agreement.
The discriminatory enforcement argument, however, is more substantial. It is clear that the Government could not enforce the Secrecy Agreement solely on the grounds of sex or of race, i. e., by enforcing it only against women or against blacks. Similarly, it is certain that the Government cannot use enforcement of the Secrecy Agreement for the sole purpose of suppressing speech that is unfavorable to the agency. Agee contends that the agency's actions support his claim that the Government's present motion is primarily motivated by the agency's disagreement with his views. This is sharply denied. On the limited facts submitted by the parties it is difficult, however, to determine to what extent, if any, enforcement of the agreement against Agee is based on the impermissible ground that the agency was offended by the unfavorable material Agee has written.
Agee, however, has presented evidence indicating that the CIA's past enforcement record bears a considerable correlation with the agency's perception of the extent to which the material is favorable to the agency. A reading list of books concerning the CIA, prepared by the CIA itself for recruitment purposes, noted five works as "more critical of the Agency." Four of these works have spawned suits by the Government to enforce the agreement, whereas no suits have been filed against other authors whose works were not listed as "more critical," even though some of those authors concededly did not submit their material for prepublication review. Plaintiff thus has raised a factual issue as to whether the Government's past enforcement has been clouded by content considerations rather than wholly legitimate concerns for security.
In view of the foregoing, the Court has determined that it would not be appropriate, on these motions for summary judgment, to impose a constructive trust over the proceeds of Agee's two books, or to order an accounting. Not only is the civil law of discriminatory enforcement uncertain but there are, as noted, unsettled factual issues that can only come clear through time-consuming discovery, if the issues were to be pursued. The past, however, is no mirror of the future. The agency has recently prepared a policy statement on its prepublication review program that demonstrates a sensitivity to First Amendment concerns. Backed by Snepp's endorsement, the agency currently is carrying out a far more systematic and organized program for enforcing its Secrecy Agreement rights. There is no showing that anyone who announces in advance an intention to ignore the agreement and who has egregiously violated it in the past will not be subjected to an enforcement action. The agency, moreover, expressly states that "[approval] will not be denied solely because the subject matter may be embarrassing to or critical of the Agency." Furthermore, the "expressed or presumed attitude of a person toward the United States Government or the Agency is not a factor" in determining whether a person suspected of violating the Secrecy Agreement will be recommended for prosecution. (See Regulation HR6-2 and Policy of Enforcement, attached to Turner's Affidavit.)
Accordingly, the Court believes that it is entirely appropriate under all the facts and circumstances of this case to issue an injunction against Agee requiring his full compliance with the Secrecy Agreement in the future. Agee has shown a flagrant disregard for the requirements of the Secrecy Agreement, justifying this Court's action to require future compliance and to protect the security of the United States.
ON MOTION TO AMEND PERMANENT ...