WASHINGTON – The Supreme Court considered Tuesday whether shadowy spy deals should ever end up in federal court, hearing the case of former Soviet-bloc spies who claim the CIA (search) stiffed them on a pledge of lifetime support.
At issue is a 130-year-old Supreme Court ruling that said former spies may not sue the U.S. government because of the secret nature of their pacts, which are made with the understanding that "the lips of the other were to be forever sealed."
Most justices appeared reluctant to allow the couple's lawsuit against the CIA. They noted that not only spies but government officials accept they might be backstabbed when making the clandestine deals.
"Suppose a former spy is alleged to breach an agreement by writing or publishing a tell-all book. Would the government be without recourse?" asked Justice Sandra Day O'Connor (search), to whom the government lawyers said yes.
Taking up O'Connor's point, Justice Antonin Scalia (search) observed: "The government can't enforce the contract, either. You take the bad with the good."
The case involves a former high-ranking diplomat and his wife, identified in filings only as John and Jane Doe, who wanted to defect from their country but were pressured by U.S. authorities to instead spy for them, according to the lawsuit. In exchange, the CIA promised to provide them lifetime security.
When their spying was over in 1987, the CIA helped them resettle in Seattle with new identities, benefits and a bank job for the husband, the suit says. They received a $27,000 yearly stipend and became U.S. citizens.
The CIA stopped the subsidy when John Doe's salary from the bank hit $27,000, the suit says, but the two were promised the agency would "always be there." However, the couple claims, when Doe lost his job in 1997, the CIA refused to reinstate the stipend, saying the couple had received enough pay for their spy services.
When the Does filed suit, the CIA pointed to the 1875 Supreme Court ruling in Totten v. United States, which found that a dispute between President Abraham Lincoln and a Civil War spy could not be litigated because of the risk to national security and foreign policy.
The San Francisco-based 9th U.S. Circuit Court of Appeals disagreed, ruling that the Does had a right to obtain documents and other information from the CIA to build its trial case. It said recent rulings have allowed litigation to continue in national security cases if the government doesn't show a clear risk.
During oral arguments, the couple's attorney, David Burman, contended that the executive branch should not have the power to renege on spy contracts without some judicial review. Sensitive information could be kept secret by sealing records or other methods, he said.
"The mere fact that they're taking away their identity, changing their occupation, we believe that created a liberty interest," Burman said. "This is not about the protection of state secrets but the limits of executive power."
Acting Solicitor General Paul Clement argued that the spy lawsuits should be dismissed outright because the risk of disclosure could undermine CIA recruitment efforts.
"There's something inherent about an espionage relationship that you understand you have no protected status under the law," Clement said.
Justice John Paul Stevens pressed Clement on whether spies would have any court remedy against the government for broken promises. The Does, for instance, had argued that last term's enemy combatant cases showed national security interests should be balanced against an individual's right to due process.
"Does that mean you can torture an agent if you're dissatisfied with their performance?" Stevens asked Clement. Stevens has expressed concerns about the dangers of unchecked executive power following reports of alleged abuse of Iraqi prisoners.
Clement assured him that the spies would have rights to sue under different provisions of the Constitution since it doesn't involve a dispute over terms of a spy contract.
"In those cases, you don't have to allege that I had a contract and then they tortured me," Clement said.
The case is Tenet v. Doe, 03-1395. A ruling is expected by late June.