150 F.3d 112 (2nd Cir. 1998), 97-6116, Kronisch v. United States

Docket Nº:97-6116.
Citation:150 F.3d 112
Party Name:Gloria KRONISCH, Executrix of the Estate of Stanley Milton Glickman, Plaintiff-Appellant, v. UNITED STATES of America, Sidney Gottlieb, in his individual and in his official capacities, Richard Helms, in his individual and in his official capacities, and John Does, unknown agents of the Central Intelligence Agency, Defendants-Appellees.
Case Date:July 09, 1998
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 112

150 F.3d 112 (2nd Cir. 1998)

Gloria KRONISCH, Executrix of the Estate of Stanley Milton

Glickman, Plaintiff-Appellant,

v.

UNITED STATES of America, Sidney Gottlieb, in his individual

and in his official capacities, Richard Helms, in his

individual and in his official capacities, and John Does,

unknown agents of the Central Intelligence Agency,

Defendants-Appellees.

No. 97-6116.

United States Court of Appeals, Second Circuit

July 9, 1998

Argued Jan. 30, 1998.

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Sidney Bender, Leventritt Lewittes & Bender, New York City (Risa Bender, of counsel), for Plaintiff-Appellant.

Nancy G. Milburn, Assistant United States Attorney for the Southern District of New York, New York City (Mary Jo White, United States Attorney for the Southern District of New York, Steven M. Haber, Assistant United States Attorney, of counsel), for Defendants-Appellees.

Before: CALABRESI, CABRANES, and HEANEY, [*] Circuit Judges.

JOSE A. CABRANES, Circuit Judge:

Gloria Kronisch, executrix of the estate of Stanley Milton Glickman ("Glickman" or "plaintiff"), appeals from a judgment of the United States District Court for the Southern District of New York (Kimba M. Wood, Judge) granting summary judgment in favor of defendants. Glickman brought suit against the United States of America and two officials of the Central Intelligence Agency (the "CIA"), Sidney Gottlieb and Richard Helms, alleging that he was one of the victims of the CIA's program to test the effects of mind-altering drugs, including lysergic acid diethylamide ("LSD"), on unwitting subjects beginning in the early 1950s. Glickman claims that Gottlieb or some other agent of the United States government placed LSD in his drink in a Paris cafe in October 1952. The district court, adopting in full the conclusions of the Report and Recommendation of Magistrate Judge Naomi Reice Buchwald, granted defendants' motion for summary judgment on the bases that plaintiff had failed to establish a genuine issue of material fact as to liability, that his claims were time-barred, and that the court lacked personal jurisdiction over Gottlieb and Helms. We affirm in part, vacate in part, and remand.

I.

  1. The CIA's Drug-Testing Programs

    The Select Committee to Study Governmental Operations with Respect to Intelligence Activities, chaired by the late Senator Frank Church of Idaho (the "Church Committee"), held hearings in 1975 to investigate various CIA activities, including the testing and use of chemical and biological agents by the intelligence community. The final report of the Church Committee, published in 1976, explained that the CIA was acutely concerned in the late 1940s and early 1950s that the Soviet Union, China, and other Communist countries had used, or were developing the capacity to use, chemical and biological agents and other techniques for purposes of interrogation, brainwashing, and attacks against United States and Allied personnel abroad. See Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, 94th Cong., 2d Sess. (Apr. 26, 1976), at 392 ("Church Committee Report"). "Of particular

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    concern was the drug LSD." 1 Id. As described by the Church Committee Report,

    In order to meet the perceived threat to national security, substantial programs for the testing and use of chemical and biological agents--including projects involving the surreptitious administration of LSD to unwitting nonvolunteer subjects at all social levels, high and low, native American and foreign--were conceived, and implemented. These programs resulted in substantial violations of the rights of individuals within the United States.

    Id. at 393 (internal quotation marks omitted). In the late 1970s, at the request of the Subcommittee on Health and Scientific Research of the Senate Committee on Human Resources, chaired by Senator Edward M. Kennedy of Massachusetts (the "Kennedy Committee"), the CIA attempted to identify victims of the drug tests. The CIA ultimately identified sixteen unwitting subjects of LSD tests in the United States, but did not identify any victims of overseas testing.

    The earliest CIA program involving the use of chemical and biological agents was approved by the Director of Central Intelligence ("DCI") in 1950. Id. at 387. Known initially as Project BLUEBIRD and renamed ARTICHOKE in August 1951, the objectives of this program were the development of defensive techniques for resisting interrogation as well as "the evaluation of offensive uses of unconventional interrogation techniques, including hypnosis and drugs." Id. The project included both controlled in-house experiments regarding interrogation techniques, as well as overseas interrogations on foreign nationals using nonhallucinogenic drugs (so-called "truth serums") that occurred in "safehouses" or other secure locations. See id. at 387-88. The overseas interrogations were conducted upon known or suspected foreign intelligence agents, double agents, and defectors, but, according to the government, also may have included persons not suspected of espionage or wrongdoing. See Declaration of Nancy G. Milburn, Assistant United States Attorney for the Southern District of New York, in Support of Defendants' Motion for Summary Judgment, Exhibits 4-8 (April 25, 1996) ("Milburn Declaration"). During two overseas trips in 1952, interrogations were conducted by ARTICHOKE teams using "new drugs," identified as seconal, dexedrine, and marijuana. Id. Ex. 10. The documents contained in the record before us do not indicate the use of hallucinogenic drugs such as LSD as part of the BLUEBIRD/ARTICHOKE Program, nor do the BLUEBIRD/ARTICHOKE documents indicate that interrogations took place in France--where Glickman alleges he was drugged in October 1952--or that they were performed on Americans overseas. See Kronisch v. United States, No. 83 Civ. 2458, 1997 WL 907994, at * 5-* 6 (S.D.N.Y. April 14, 1997) ("Kronisch III ").

    Based on a proposal to the DCI from defendant Richard Helms--then the CIA's Assistant Deputy Director for Plans--the CIA's technical research component, known as the Technical Services Division ("TSD"), initiated Project MKULTRA, the agency's principal project to study the effects of chemical and biological agents on human behavior. See Church Committee Report at 389-90. Although not formally approved by the DCI until April 13, 1953, id. at 390, Project MKULTRA was "actively underway since the middle of 1952." Milburn Declaration, Ex. 23. MKULTRA included 149 subprojects that the CIA contracted out, by means of a special funding mechanism intended to ensure the highest level of secrecy, to specialists in universities, hospitals, pharmaceutical houses, and public and private institutions.

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    See Church Committee Report at 390-91; Kronisch III, 1997 WL 907994, at * 6; Milburn Declaration, Ex. 28. Defendant Sidney Gottlieb, who at the time was Chief of the Chemical Division of TSD, was put in charge of planning and organizing MKULTRA in 1952.

    As described in the Church Committee Report, LSD was one of the materials tested in the MKULTRA program, and that testing included the "surreptitious administration [of LSD] to unwitting nonvolunteer subjects in normal life settings by undercover officers of the Bureau of Narcotics acting for the CIA." Church Committee Report at 391. In the view of the CIA, such surreptitious testing was important because the "testing of materials under accepted scientific procedures fails to disclose the full pattern of reactions and attributions that may occur in operational situations." Id. (internal quotation marks and citation omitted). The record shows that Bureau of Narcotics Agent George White, who was asked by Gottlieb in 1952 to work on LSD research for the CIA, see Declaration of Sidney Gottlieb p 4 (April 23, 1996) ("Gottlieb Declaration"), conducted LSD experiments on unsuspecting persons in New York City. White may have given LSD to unwitting friends in his New York City apartment in November 1952, and beginning in June 1953 he administered LSD to unsuspecting persons (typically drug informants and prostitutes) with whom he came into contact in his work as a narcotics agent. See Kronisch III, 1997 WL 907994, at * 6 n. 8. He may also have administered LSD to one or more unsuspecting persons at a bar. See Hearings Before the Subcommittee on Health and Scientific Research of the Senate Committee on Human Resources on S. 1893, 95th Cong., 1st Sess. 204 (Sept. 20 and 21, 1977) ("Kennedy Committee Hearings") (testimony of Sidney Gottlieb).

    In addition to testing LSD on unwitting subjects in the United States, "[a] special procedure, designated MKDELTA, was established to govern the use of MKULTRA materials abroad." Church Committee Report at 391. The Church Committee determined "that the use of these materials abroad began in 1953, and possibly as early as 1950." Id. (emphasis added). Defendants assert that overseas use of LSD was limited to formal interrogation settings, and that these interrogations were performed exclusively on foreign nationals. They claim that Gottlieb traveled overseas to participate in these interrogations on three occasions between late 1953--a year or more after plaintiff's alleged incident--and 1956. They assert that the first of these trips was to the Far East, and while national security concerns prevent them from divulging the locations of the other two interrogations, they have represented that neither occurred in France. See Brief of Defendants-Appellees at 8. Other than these three occasions, defendants assert that "neither Gottlieb nor anyone else in TSD participated in any overseas...

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