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Saturday, June 25, 2011

Orlikow Case

Orlikow Case
2. United States 78(12)

When decision is made to conduct intelligence operations by methods which are unconstitutional or egregious, it is lacking statutory or regulatory authority and thus not within the discretionary function exception to the Federal Tort Claims Act, but allegation that employee has ignored any agency practice does not automatically take activity outside of the discretionary function exception. 28 U.S.C.A. 1346, 2680(a).
3. United States 78(12)

Claim that CIA negligently supervised employees who chose to fund research of psychiatrist who allegedly harmed plaintiffs was distinguishable from any policy decision in implementing plan to do brainwashing research, and alleged pure and simple acts of negligence not within the discretionary function exception to the Federal Tort Claims Act. 28 U.S.C.A. 1346, 2680(a).
4. United States 78(8)

. . .

15. Federal Civil Procedure 2515 In suit alleging reckless funding of hazardous experiments by the CIA on human subjects and funding of medical malpractice, there were issues of fact precluding summary judgment on question of whether the CIA should have known that Psychiatrist’s research was clearly beyond the medical standard of care.
16. United States 78(14)
Claim against the United States based on alleged negligence of the CIA in supervising employees and funding medical malpractice and research experiments on unwitting human subjects did not “arise in a foreign country” so as to be precluded under the Federal Tort Claims Act, though the injuries occurred in Canada where the alleged acts or omissions of government employees occurred in the United States. 28 U.S.C.A. 1346, 2680(k)
Many of the early projects involved the us a of Lysergic Acid Diethyamide (LSD) and other drugs and some involved experimentation on unwitting human subjects. Id. 105 S.Ct. at 1884, n. 2. A few tragic deaths occurred from these actions.’ Defendant admits that as a result of one specific death, critical letters were given by Director Dulles to the Chief, TSS, Mr. Gibbons, the Chief of the Technical Operations Branch of TSS, Colonel Drum, and the Chief of the Chemical Division of TSS, Dr. Gottlieb. Defendant’s Statement of Material Facts as to Which There Is No Genuine Issue, hereinafter “Defendant’s Statement” par. 20. Additionally, after the Olson death, Director Dulles “made it clear that these projects should be handled under adequate medical supervision.” Defend-ant’s Statement par. 22.

In 1955, the CIA set up a secret front organization, known as the Society for the Investigation of Human Ecology (SIHE), to fund further studies. CIA employee, Dr. John Gittinger and Dr. Wolff from Cornell, assisted in the program formation. Approximately a year later, Dr. Gittinger read an article, published in the American Journal of Psychiatry, written by Dr. Ewen Cameron from the Allen Memorial Institute of Psychiatry, and entitled Psychic Driving. Defendant’s Motion Exhibit 6. The article prompted him to invite Dr. Cameron to submit an application for SIHE research funds. Defendant’s Statement pars. 31-32.

footnote 2. The memorandum refers to two “well,defined” fields of endeavor earmarked by the CIA. The first is listed as research to develop a capability in the covert use of biological and chemical materials. The second field, although cited to in the memorandum was erased from the exhibit. See, C.I.A. v. Sims, 471 U.S. 159, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985).

11, 21 Plaintiffs’ complaint states three counts: (1) negligent supervision and control of employees who chose to fund Dr. Cameron, (2) negligent funding of an inherently dangerous activity, is, human experimentation, and (3) which can be read into the second count, asserts liability for CIA funding of medical malpractice. The second and third count allege extraordinary and malevolent acts which by their very nature are beyond any reasonable discretion that Congress might have envisioned when creating the discretionary exception. See Glickman v. United States, 626 F.Supp. 171, 175 (S.D.N.Y.1985).5 When a decision is made to conduct intelligence op-erations bv methods which are unconstitutional or egregious, it is lacking in statutory or regulatory authority. Socialist Workers Party v. Attorney General of the United States, 642 F.Supp. 1357, 1417 (S.D. N.Y.1986). The Court is mindful that an allegation that the employee has ignored any agency practice does not automatically take an activity outside of the discretionary function. Red Lake Band of Chippewa Indians v. United States, 800 F.2d 1187, 1197, n. 3 (D.C.Cir.1986). Yet, from another perspective, defendant admits that after the Olson tragedy future projects were to be handled with proper medical guidance. Where the “government official in performing his statutory duties must act without reliance upon a fixed or readily ascertainable standard, the decision he makes is discretionary and within the exception to the Tort Claims Act. Conversely, if there is a standard by which his action is measured, it is not within the exception.” Barton v. United States, 609 F.2d 977, 979 (10th Cir.1979).

The CIA was created to correlate and evaluate intelligence relating to the national security. If the disputed facts were resolved in favor of plaintiffs, the defendant would have acted so far beyond its authority that in any proper construction the action could not be termed discretionary. As one court stated: “Discretion may be as elastic as a rubberband, but it, too, has a breaking point,” Birnbaum v. United States, 589 F.2d 319 329 (2d Cir.1978).