November 13, 2014

Federal Bar Council News / Written by: Bennette Deacy Kramer

In an opinion by Chief Justice Rehnquist, a unanimous Supreme Court, reversing the Ninth Circuit, held on March 2, in Tenet v. Doe, that "suits against the Government based on covert espionage agreements," including suits asserting estoppel and due process claims, are barred by the Totten Rule. In Totten v. United States, 92 U.S. 105 (1876), the Court held "that public policy forbade a self-styled Civil War spy from suing the United States to enforce its obligations under their secret espionage agreement."

Spying And Security

According to the second amended complaint in Tenet, John and Jane Doe were former citizens of a foreign country, which was considered an enemy of the United States. The husband was a high-ranking diplomat for that country, and both plaintiffs wished to defect to the United States. The CIA asked them to stay on in their country and spy for the United States, in exchange for which the CIA promised them travel to the United States and financial and personal security for life. After completing their term of high-risk espionage service, the Does defected and were given new names and false backgrounds. The CIA helped them become United States citizens, and began to provide financial assistance and personal security. John Doe then obtained employment, and as his salary increased, he agreed to discontinue the CIA benefits while he was working.

In 1997, John Doe was laid off after a corporate merger and was unable to find new employment. When he requested financial assistance from the CIA, the CIA denied the assistance on the ground that it no longer had the funds available to provide assistance.

Later, the CIA told the Does that it had determined that the benefits the CIA had already provided to the Does was sufficient compensation for the services rendered. They appealed to the Director of the CIA and to the Helms Panel, and both appeals were denied.

The Does then sued the CIA, asserting that it had violated their procedural and substantive due process rights "by denying them support and by failing to provide them with a fair internal process for reviewing their claims." They sought injunctive relief ordering the CIA to resume financial support pending further review, a declaratory judgment stating that the CIA failed to provide an adequate review process under the constitution, and a mandamus order "requiring the CIA to adopt agency procedures to give them fair review, and to provide them with security and financial assistance." They claimed that Totten only prohibited suits based on breach of an espionage contract, and that their claims fell outside of that prohibition.

The district court denied the government's claim that Totten bars all actions arising from a secret espionage agreement, and the Ninth Circuit affirmed. The Supreme Court granted certiorari.

Public Policy

Rejecting the argument that Totten only applied to contract claims, Justice Rehnquist noted that Totten was based on the public policy against disclosure of confidential matters inherent in secret espionage contracts. Thus, judicial review and the necessary exposure of a secret espionage relationship with the government are simply precluded. Justice Rehnquist rejected the Ninth Circuit's conclusion that Totten simply expressed the evidentiary "state secrets" privilege, rather than a bar to all claims. Also distinguishing Title VII claims against the CIA by covert employees, which are an allowed subject of legal actions, Justice Rehnquist pointed out that here it was the very existence of the plaintiffs' relationship with the government that could not be revealed.

The Court adhered to Totten as the only absolute protection of a secret espionage relationship. The Court stated that: "The possibility that a suit may proceed and an espionage relationship may be revealed, if the state secrets privilege is found not to apply, is unacceptable: 'Even a small chance that some court will order disclosure of a source's identity could well impair intelligence gathering and cause sources to 'close up like a clam.'' . . . Forcing the Government to litigate these claims would also make it vulnerable to 'graymail,' i.e., individual lawsuits brought to induce the CIA to settle a case (or prevent its filing) out of fear that any effort to litigate the action would reveal classified information that may undermine ongoing covert operations. And requiring the Government to invoke the privilege on a case-by-case basis risks the perception that it is either confirming or denying relationships with individual plaintiffs."

Thus, a party to a secret espionage agreement must have faith that the CIA will uphold its end of the bargain. Any other remedy is barred.

Bennette Deacy Kramer is a partner at Schlam Stone & Dolan.

[This article is reprinted with permission from the April 2005 issue of the Federal Bar Council News. Copyright © 2005 Federal Bar Council. All rights reserved. Further duplication without permission is prohibited.]