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TENET V. DOE (03-1395)
Web-accessible at:
http://supct.law.cornell.edu/supct/html/03-1395.ZS.html
Argued January 11, 2005 -- Decided March 2, 2005
Opinion author: Rehnquist
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Respondent husband and wife filed suit against
the United States and the Director of the Central
Intelligence Agency (CIA), asserting estoppel and
due process claims for the CIA's alleged failure to
provide them with financial assistance it had
promised in return for their espionage services
during the Cold War. 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. While the Reynolds Court looked to
Totten in invoking the "well established" state
secrets privilege, it in no way signaled a retreat
from Totten's broader holding that lawsuits
premised on alleged espionage agreements are
altogether forbidden.The Court later credited
Totten's more sweeping holding in Weinberger v.
Catholic Action of Haw./Peace Ed. Project, 454 U.S.
139, 146-147, thus confirming its continued
validity. Reynolds therefore cannot plausibly be
read to have replaced Totten's categorical bar in
the distinct class of cases that depend upon
clandestine spy relationships. Nor does Webster v.
Doe, 486 U.S. 592, which addressed constitutional
claims made by acknowledged (though covert) CIA
employees, support respondents' claim. Only in the
case of an alleged former spy is Totten's core
concern implicated: preventing the existence of the
plaintiff's relationship with the Government from
being revealed. The state secrets privilege and
the use of in camera judicial proceedings simply
cannot provide the absolute protection the Court
found necessary in enunciating the Totten rule.
The possibility that a suit may proceed and an
espionage relationship may be revealed is
unacceptable. 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 out of fear that
litigation would reveal classified information that
might undermine 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.
Pp. 5-10.
329 F.3d 1135, reversed.
Rehnquist,
C. J., delivered the opinion for a unanimous Court.
Stevens, J., filed a concurring opinion, in which
Ginsburg, J.,
joined. Scalia, J., filed a concurring opinion.
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