Spy vs. Spy vs. Scalia.

Oral argument from the court.
Jan. 11 2005 6:48 PM

Get Smart!

The Supreme Court asks whether the CIA can stiff its aging spies.

A word of caution to the many Slate readers considering employment in the international intrigue and espionage field: The work can be lethally dangerous, the pay is mediocre, and no rule of law applies to your bosses. And don't get me started on the pension plan. …

Listen to the story of John and Jane Doe, an ordinary middle-aged married Seattle couple, who just happen to have been Cold War spies for the CIA. Even their own lawyer claims this morning that he doesn't know who they really are: They may be in the courtroom. They may be tossing fish around Pike Place Market or Segwaying around the Microsoft compound. All we know is that when Mr. Doe was serving as a high-ranking diplomat for some Eastern bloc country, he and his wife attempted to defect to the United States and were induced by the CIA to stick around and do some spy work first. The Does claim that the CIA promised to resettle them in the United States when they were done and to take care of them financially "for life."

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.


When their spying was done, the Does were brought to this country under the PL-110 Program—sort of a green-card lottery for those lucky aliens whose residence in the United States is required in the interest of national security. The Does were provided with new identities and backgrounds and a job for John, and they were granted a $20,000 stipend from the CIA. The stipend decreased as his salary went up, but they were always given to understand that the agency had their back. In 1997, when he was downsized, Doe tried to get the CIA to help him find work or reinstate his stipend. No deal. The spies who came in from the cold had been frozen out. The CIA more or less changed the locks. The agency refused to share its internal regulations with the Does and never responded to document requests. The Does, having internalized the American Dream in a few short decades, sued in federal court. The Does prevailed both in the lower court and in the 9th Circuit Court of Appeals, both of which refused to dismiss their legal claims on the secrecy grounds requested by the government.

The legal question turns on a case from 1875, Totten v. United States, an appeal from the estate of William Lloyd, a Civil War spy hired by Abraham Lincoln, who allegedly chiseled him out of some part of their secret spy agreement. Totten held that the courts had no jurisdiction over secret spy agreements because the agreement itself was supposed to be kept secret. Lloyd's estate breached that agreement first by spilling national secrets in a courtroom.

Acting Solicitor General Paul Clement—not coincidentally the man who argued the government's previous irrevocable-and-unexamined-entitlement-to-executive-secrecy case—tells the court that the barrier between spies and courts goes both ways: The CIA can't sue spies who violate their agreements, either. I imagine that's because summary executions are far more efficacious, but Clement doesn't say this.

Clement haggles with both Sandra Day Double-O'Connor and Anthony Kennedy over his precise legal position: Is he asking that this case be dismissed on jurisdictional grounds or on the merits? Clement responds that either way works for him. Under Totten, he says, "the very idea of walking into court is inconsistent with the secret nature of spy contracts." He adds, "When you enter an espionage relationship, you understand that you have no recourse under the law."

Justice John Paul Stevens jumps in: "Does that mean you can torture an agent if you are dissatisfied with their work?" Clement says that claims like that don't turn on the secret nature of spy contracts. Are spy contracts written in invisible ink? Or at least lemon juice, as in Encyclopedia Brown? Only the Does can tell us, but no one knows whether they are even in court today.

Clement claims that an explicit rule requiring the dismissal of all spy cases under Totten "sends out a clear message" to spies: "There's no point in bothering to file suits, they will be dismissed." He says that rather proudly—as though the legal process was a newish experiment that has largely failed. He is good at arguing that government agencies are entitled to do whatever they wish without explaining. He can make this argument and smile boyishly at the same time.

Justice Antonin Scalia notes that "Totten was decided in an era in which courts were not as flexible as they are today: There are procedures to keep matters secret, closed hearings." He adds that since the "only purpose of Totten was to protect secrets," the court should consider whether there aren't other ways to keep them.

David J. Burman, a Seattle lawyer, represents the Does. He immediately detonates an exploding pen all over the bench. Justice David Souter wants to know how there can even be a case unless there was a spy contract between the CIA and the Does. Burman says that isn't his claim. "You're saying they are not spies?" asks Souter.


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