CENTRAL INTELLIGENCE AGENCY

Doe v. Tenet

Many works of fiction describe the imagined lives of spies and turncoats, detailing the adventures of international espionage. However, the real lives of spies can reveal more mundane issues, including contractual issues between spies and the agencies that recruit them to betray their country. Such was the case in Doe v. Tenet, __U.S. __, __S.Ct. __, __ L.Ed.2d __ 2005 WL 473682 (2005), in which a married couple who had spied against their country on behalf of the United States sought to enforce a covert-espionage agreement that they had negotiated with the Central Intelligence Agency (CIA). However, the U.S. Supreme Court upheld the dismissal of their lawsuit, ruling that a Civil War case forbids such suits.

The two foreign nationals, who filed suit anonymously as John and Jane Doe, alleged that John Doe had been a high-ranking diplomat for a country that was considered an enemy of the United States. When the couple approached the CIA about defecting to the United States, the CIA persuaded them to remain in their positions for a specified period and spy on behalf of the United States. In return, the CIA agreed to bring them to the United States and ensure their personal and financial security for the rest of their lives. After fulfilling their spy duties, the coupled eventually defected to the United States, where they were given new names and false backgrounds and were provided with personal security and financial assistance. The CIA helped to arrange a job for John Doe in the state of Washington. As Doe's salary increased, the CIA decreased its stipend, before ending it altogether with Doe's agreement. In 1997, after many years of employment, Doe was laid off. He could not find another job, in part because the CIA had placed restrictions on the type of employment he could hold. It was at that point that Doe asked again for financial assistance. When the CIA declined to resume the payments, citing lack of funds, the Does filed suit in federal court.

The Does alleged that they had been denied due process because the CIA had refused to grant them the benefits or a fair internal review process for consideration of their claims. They asked the court to order the CIA to make monthly payments to them pending an agency review, as well as to issue a declaratory judgment that would force the CIA to setup a fair administrative review process. The district court dismissed some of their claims but ruled that the Does could proceed with their due process claim. On appeal, the U.S. Court of Appeals for the Ninth Circuit upheld the district court's decision and held the Does could proceed to trial on the claim. However, the appeals court stated the government had the right to assert a state-secrets privilege that could keep sensitive evidence out of the court record. The government then appealed to the U.S. Supreme Court.

The U.S. Supreme Court, in a unanimous decision, overturned the Ninth Circuit's decision. Chief Justice William Rehnquist, writing for the Court, stated that the case was governed by Totten v. United States, 92 U.S. 105, 23 L.Ed. 605 (1876). In that case, the administrator of William A. Lloyd's estate sued the U.S. government to recover compensation for Lloyd's purported service as a Civil War spy. Lloyd had supposedly made a contract with President Abraham Lincoln in July 1861 to conduct espionage behind Confederate lines concerning troop movements and fort plans. For his work he was to be paid $200 per month (a substantial amount at that time). The Court, while acknowledging that the President had the authority to make such agreements, ruled that the essence of the contract was that it was secret and had to remain secret. The Court noted that the agent and his employer had to know that "the lips of the other were to be for ever sealed respecting the relation of either to the matter." To disclose the existence of the contract "might compromise or embarrass our government in its public duties, or endanger the person or injure the character of the agent." Thus, the Totten Court held that a former spy could not enforce such a contract in a court of law.

Rehnquist stated that the appeals court had been wrong to not apply the Totten precedent. The Ninth Circuit had mistakenly limited the precedent to breach-of-contract claims, thereby allowing the due process claim to proceed. Rehnquist pointed out that Totten contained language that barred any suit in a court of law. Therefore, wrote Rehnquist, "no matter the clothing in which alleged spies dress their claims, Totten specifically precludes judicial review" in cases like the Does' "where success depends upon the existence of their secret espionage relationship with the Government." To deviate from this precedent would threaten to undermine ongoing covert operations and could induce "graymail" (i.e., a lawsuit or a threatened lawsuit that seeks to induce the defendant to settle a case out of fear of public disclosure of sensitive facts.)