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TENET et al. v. DOE et ux.     , 544 U.S. ---

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TENET et al. v. DOE et ux.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 03-1395.Argued January 11, 2005--Decided March 2, 2005

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.


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