Tenet v. Doe
161 L. Ed. 2d 82, 2005 U.S. LEXIS 2202, 544 U.S. 1 (2005)
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Rule of Law:
Public policy forbids the maintenance of any lawsuit against the United States that is premised on the existence of a secret espionage agreement. This rule, established in Totten v. United States, serves as a categorical bar to judicial review, regardless of the legal theory under which the plaintiff brings the claim.
Facts:
- John and Jane Doe, citizens of a foreign country, were persuaded by CIA agents to conduct espionage for the United States.
- In return for their services, the CIA promised to arrange for their travel to the U.S. and ensure their financial and personal security for life.
- After performing years of espionage services, the Does defected to the U.S. with the CIA's assistance and began receiving financial support.
- With the CIA's help, John Doe obtained a job, and he agreed to a discontinuation of the CIA's living stipend.
- Years later, in 1997, John Doe was laid off from his job.
- Doe was unable to find new employment due to CIA-imposed restrictions on the types of jobs he could hold.
- The Does requested the CIA resume financial assistance, but the agency denied their request.
Procedural Posture:
- John and Jane Doe sued the United States and the Director of the CIA in the U.S. District Court for the Western District of Washington.
- The Government filed a motion to dismiss, arguing the suit was barred by the doctrine established in Totten v. United States.
- The District Court denied the Government's motion on the Totten grounds, allowing the Does' due process and estoppel claims to proceed.
- The District Court certified its order for an interlocutory appeal to the appellate court.
- On appeal, a divided panel of the U.S. Court of Appeals for the Ninth Circuit affirmed the District Court's decision.
- The Ninth Circuit denied the Government's petition for a rehearing en banc.
- The U.S. Supreme Court granted certiorari to review the judgment of the Court of Appeals.
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Issue:
May former spies sue the government for failing to uphold promises made in a secret espionage agreement, based on claims of due process or estoppel?
Opinions:
Majority - Chief Justice Rehnquist
No. The rule from Totten v. United States is a categorical bar that prohibits any suit against the government where success depends upon the existence of a secret espionage relationship, regardless of the legal theory presented. The Totten rule is not merely a contract-law principle or an early form of the state secrets privilege; it is a broader public policy doctrine that forbids any suit that would inevitably lead to the disclosure of confidential matters. Allowing such suits to proceed, even to the discovery phase, would create an unacceptable risk of revealing secret intelligence relationships, endanger agents, and make the government vulnerable to 'graymail'—lawsuits intended to force a settlement to avoid the disclosure of classified information.
Concurring - Justice Stevens
Yes, the suit is barred. The doctrine of stare decisis provides a sufficient justification for adhering to the precedent set in Totten. While there may be situations where enforcing such agreements would serve the national interest, any modification of this federal common-law rule must come from Congress, not the courts. The Court is also correct to resolve this case on the threshold question presented by the Totten bar without first addressing a potentially antecedent jurisdictional question.
Concurring - Justice Scalia
Yes, the suit is barred. The Totten bar is not merely a 'threshold question' on the merits; it is a jurisdictional bar that precludes judicial inquiry altogether. As applied by the Court, the rule divests courts of the power to hear cases whose very subject matter is a secret espionage agreement. Alternatively, because the absence of a cause of action is so clear under existing precedent, the claims are frivolous, which is another jurisdictional ground for dismissal.
Analysis:
This decision powerfully reaffirms the vitality and broad scope of the Totten doctrine, solidifying it as an absolute bar to lawsuits based on secret espionage agreements. The Court clarifies that Totten is not simply an evidentiary privilege that can be litigated on a case-by-case basis, but a categorical rule of nonjusticiability. This precedent effectively closes the courthouse doors to alleged covert agents seeking to hold the government accountable for its promises, prioritizing the protection of national security and intelligence relationships over individual claims for relief, regardless of how those claims are legally framed.
