In our great country, even spies can sue the CIA for a breach of a services contract.
This week, the Supreme Court is going to hold oral argument in Tenet v. Doe. According to the allegations in their complaint, the Does were citizens of an Eastern Block country, who engaged in espionage activities for CIA in exchange for resettlement in the United States and personal and financial security for life. Once the Does concluded their spy activities, the CIA moved them to the United States and set up Mr. Doe with a job and a salary stipend. When Mr. Doe lost that job due to a corporate merger, he came back to CIA and asked for help in getting a new job and a renewal of the stipend. The CIA told Mr. Doe to go spy himself, explaining that the past stipend and the first job was all he was going to get for his trouble. Mr. Doe appealed that decision to the Director of the CIA and the Helms Panel (a panel of former CIA officials), who recommended that the Does receive one year worth of benefits in exchange for settlement and release of all claims. The Does did not accept the deal and, instead, filed a lawsuit in the federal district court, alleging various constitutional violations and tort claims.
At issue in the case is whether the federal courts can even hear the Does' breach of contract complaint. In a Civil War era case, Totten v. United States, the Supreme Court held that the courts could not hear any cases alleging breach of a secret service contract. The Court reasoned that such contracts are within the sole perview of the President and that allowing such suits to be heard in courts would defeat the very purpose of secret service. However, the district court held that Totten did not automatically bar the Does suit and the Ninth Circuit affirmed, reasoning that the case would be governed by the state secrets privilege. The issue for review is whether Totten categorically bars the Does lawsuit.
I could not find the links to the district court and the Ninth Circuit opinion, so I am really curious to see what their reasoning was. It seems that the lower courts got it wrong. First of all, Totten seems to be directly on point - claims for a breach of a secret service / spy contract cannot be heard in court. Also, from a policy standpoint, as much as I hate the Bush administration's unprecedented (and often unconstitutional) push for expansion of the executive power, performance of a spy contract should be something under complete control of the executive branch. If the Court allows those disputes to be decided by the judicial branch, we might as well abolish any intelligence service.
Also, all legal points aside, I cannot believe two things. ONe - that someone would be stupid enough to announce that he was a spy just to get some financial benefits. Two - that the CIA would be so cheap, as to not pay off the Does and allow this dispute to even reach the courts.
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