The U.S. Supreme Court has
just (as in this morning) handed down a ruling in
Tenent v. Doe. Rehnquist authored it.
Quoting from the decision:
"Respondent husband and wife filed suit against the United States and the Director of the Central Intelligence Agency (CIA), asserting . . . [the] CIA's alleged[ly] fail[ed] to provide them with financial assistance it had promised in return for their espionage services during the Cold War."
The Supremes threw out the case. More below fold.
The District Court denied the Government's motions to dismiss and for summary judgment, finding that respondents' claims were not barred by the rule of Totten v. United States, 92 U.S. 105, prohibiting suits against the Government based on covert espionage agreements. Affirming in relevant part, the Ninth Circuit reasoned that Totten posed no bar to reviewing some of respondents' claims and thus the case could proceed to trial, subject to the Government's asserting the evidentiary state secrets privilege and the District Court's resolving that issue.
Held: Respondents' suit is barred by the Totten
rule.
In Totten, this Court concluded with no difficulty that the President had the authority to bind the United States to contracts with secret agents, observed that the very essence of such a contract was that it was secret and had to remain so, and found that allowing a former spy to bring suit to enforce such a contract would be entirely incompatible with the contract's nature. The Ninth Circuit was quite wrong in holding that Totten does not require dismissal of respondents' claims. It reasoned that Totten developed merely a contract rule, prohibiting breach-of-contract claims seeking to enforce an espionage agreement's terms but not barring due process or estoppel claims. However, Totten was not so limited. It precludes judicial review in cases such as respondents' where success depends on the existence of their secret espionage relationship with the Government. Id., at 107.
The Ninth Circuit also claimed that Totten had been recast simply as an early expression of the
evidentiary "state secrets" privilege, rather than
a categorical bar to respondents' claims, relying
mainly on United States v. Reynolds, 345 U.S. 1,
in which widows of civilians killed in a military
plane crash sought privileged military information
in their wrongful death action against the
Government. . .
There's more, but the bottom line is that, while relying on good precedent, the Ninth Circuit found that these two spies (for us, for the "good guys") could could go to Court to enforce their contract [the underlying issue was whether the gov't was obliged to re-find them jobs, re-locate them and, if needed, give them new identities when they (or one of them) got laid off] with the CIA, the U.S.S.C. said, "No, you can't."
The bottom line: without the ability, with no standing, to enforce their contracts with the CIA in a Court of Law, prospective spies for us, the good guys, will know that the promises and contracts made by the CIA are not worth the paper they're written on. No Court access = no ability to enforce. No ability to enforce = Fewer prospective spies willing to trust CIA promises (which can be reneged on any time) = fewer spies = less intel = more vulnerability for the U.S. and Americans overseas.
Thanks, Supremes.
Now, Congress and Bush had BETTER jump all over this and quickly enact a law allowing for such access to Court (to apply retroactively for the Doe's, btw) to fix this. Re: National Security, the Act could easily required any such lawsuits to be filed "Under Seal" and that any release of any information be first subject to review by the CIA, NSA and/or the like. Something tells me that spies and other covert operators wouldn't exactly want to advertise their names (uh, "Doe") or publically divulge any info that could identify them.
If Congress and the White House don't fix this pronto, word will definitely "get around" that the CIA's and the U.S.'s promises to spies are not enforceable and, therefore, ain't worth crap.