Issues
Questions as Framed for the Court by the Parties
Whether Totten v. United States, 92 U.S. 105 (1875), bars a district court from considering respondents' due process and tort claims that the Central Intelligence Agency (CIA) has wrongfully refused to keep its alleged promise to provide them with life-time financial assistance in exchange for their alleged espionage services to the CIA.
Facts
During the Cold War, John Doe and his wife Jane were diplomats for their former Soviet bloc nation. Resp. Brief, Nov. 17, 2004 (No. 03-1395), at 1—2. Seeking assistance in defecting to the United States, the Does contacted a person whom they knew to be connected to the United States embassy. Id. at 2. The CIA intervened and allegedly used intimidation and coercion to convince the Does to remain at their diplomatic posts for a period of time in order to conduct espionage for the United States. Id. The Does claim that the CIA promised to arrange for the Does' travel to the United States after they completed the requested espionage and to ensure the Does' personal and financial security for life. Id.
Eventually the CIA did arrange for the Does to travel to the United States. Id. at 3. The CIA also provided the Does with new identities and false backgrounds, enabling John Doe to find employment. Id. When the Does first moved to the United States, the CIA provided them with approximately $27,000 in aid each year. Henry Weinstein, Pair Who Claim to Be Spies Can Sue CIA, Court Rules, L.A. Times, May 30, 2003, at A30. However, as John Doe began to make more than this amount at his job, the CIA decreased and finally stopped the aid payments. Id.
After several years, John Doe lost his job as a result of a corporate merger. Id. Because of his falsified identity and work background, John Doe could not find new employment without the CIA contacting potential employers. Resp. Brief, at 4. The Does contacted the CIA to request assistance. Id. at 3—4. After four months of silence, the CIA responded that there were no funds available to give the Does because of "budget constraints." Id. at 3. In an attempt to reduce their living expenses, the Does returned to their former nation, but they were forced to return to the United States when John Doe came into contact with an officer of the former state security service whom the Does believed constituted a threat to their security. Id.at 4—5.
After returning to the United States, the Does continued their attempts to receive assistance from the CIA. Id. at 5. When those efforts failed, the Does obtained pro bono legal representation. Id. The CIA at that point informed the Does' attorney that the CIA had concluded that the benefits the agency previously provided to the Does were adequate to compensate them for the services they had performed. Id. The Does appealed their case through the CIA, but they claim that they were constantly refused information about the CIA's proceedings and were never permitted to participate in the hearings. Id. at 5—8. Instead, the Does allege that they were simply informed that their appeals had been denied. Id.
Subsequently, the Does filed suit in the United States District Court for the Western District of Washington, alleging violations of their substantive and procedural due process rights and seeking a constitutionally adequate internal CIA review process. Id. at 8. The CIA at no point confirmed or denied any of the Does' alleged facts, citing national security risks. Petition for a Writ of Certiorari, April 6, 2004, at 2. The CIA moved to dismiss the Does' claims, arguing that, under the Civil War-era case Totten v. United States, 92 U.S. 105 (1875), the district court did not have jurisdiction to decide cases based on alleged secret contracts with the government to conduct espionage. Id. at 4. The district court rejected the CIA's argument in part, concluding that although Totten prevented the adjudication of the Does' contract claims, it did not extend to tort and constitutional claims. Id. The Ninth Circuit Court of Appeals affirmed. Id. at 4—5. Both courts also concluded that because the Does had sued under pseudonyms and because the CIA had cleared all pleadings and legal documents, the case did not need to be dismissed purely to protect state secrets. Resp. Brief, at 8—12. Additionally, the Ninth Circuit held that Totten had been incorporated into the state secrets doctrine developed later in Reynolds v. United States, 345 U.S. 1 (1953). Id. at 11. Because the CIA did not assert the state secrets doctrine, the courts concluded that it was not entitled to that privilege. Id.
The CIA petitioned the Supreme Court for certiorari, arguing that Totten should have applied to prevent the Does from suing the agency for alleged promises arising from a secret agreement to conduct espionage. Pet. for Cert., at 9—15. Tottenshould apply to the Does' constitutional and tort claims as well as their contract claims, the CIA argued, because any claims the Does might have necessarily depend on the existence of some sort of secret relationship with the CIA. Id. at 15. That relationship itself is classified information and therefore claims relating to it cannot be entertained by the judiciary. Id. The Supreme Court granted certiorari to consider whether Totten prohibits the Does from suing for constitutional and tort claims related to the alleged agreement between the Does and the CIA.
Analysis
On the other hand, the Supreme Court may be reluctant to open the CIA to lawsuits from alleged spies. See Jessica Kowal, High Court to Hear a Claim for Compensation for Spying; Couple Says CIA Pledged Lifetime Financial Support, Boston Globe, Aug. 1, 2004, at A21. Because of the secret nature of arrangements between the CIA and its spies, allowing lawsuits may burden the CIA with frivolous lawsuits that cannot easily be disproved. More importantly, however, the CIA is concerned that if the Supreme Court permits suits by former spies, such suits will inevitably involve revealing classified intelligence information. Without the ability to control the disclosure of intelligence information, the CIA may be unable to conduct clandestine intelligence operations or to protect information necessary to national security. See Gina Holland and Anne Gearan, Justices Issue Rulings on Miranda, Agree to Hear CIA Case, Legal Intelligencer, June 29, 2004, at 4. Ironically, the availability of such suits may even endanger former spies by revealing their identities. Additionally, the Supreme Court may conclude that issues of national security simply should not be decided by judges; the executive branch has traditionally had sole control over policy concerned related to national security. See Doe v. Tenet, 329 F.3d 1135, 1162 (9th Cir. 2003)(Tallman, J., dissenting). Finally, the CIA has incentives to ensure that it honors meritorious claims before they even reach the courts; if the CIA develops the reputation of not honoring its agreements, it will not be able to recruit spies regardless of whether espionage contracts can be reviewed by the courts. See Daniel L. Pines, The Continuing Viability of the 1875 Supreme Court Case of Totten v. United States, 53 Admin. L. Rev. 1273, 1300 (2001).
B. Discussion of Issue
The Ninth Circuit majority and dissenting opinions present the major issues the Supreme Court will have to consider when it hears the Does' case. Although current case law supports the dissenting opinion, the majority opinion reflects the concern that the Totten doctrine denies plaintiffs the chance to be heard in court. However, the Supreme Court must weigh the harm to individual plaintiffs like the Does against the harm to the CIA's efforts to ensure national security.
1. A Closer Look at the Ninth Circuit Opinion
According to the Ninth Circuit, Totten's holding could be divided into two important parts. Doe v. Tenet, 329 F.3d 1135, 1147—1149 (9th Cir. 2003). The first part of Totten prevents suits on secret government contracts because secrecy is an implied term of such contracts and by suing the spy breaches the contract himself. Id. For this reason, the Ninth Circuit concluded that the Does could not sue on contractual claims. Id. However, the Ninth Circuit held that other claims related to the secret agreement were permissible. Id. Although the Does could not sue directly for breach of contract, they could sue on due process claims arising from statutory entitlement or from violations of their liberty interests. Id. The Does could also sue on an estoppel claim, alleging that the CIA knew the facts and intended that the Does would rely on their conduct and that the Does, not knowing the true facts, detrimentally relied on the CIA's conduct. Id. Because the Does' central claim seeks to require the CIA to provide them with a review of their claims within the CIA, the Ninth Circuit concluded that the Does' non-contractual claims could proceed. Id.
The second part of Totten's holding, according to the Ninth Circuit, requires that judicial review must be conducted without revealing confidential information. Doe v. Tenet, 329 F.3d 1135, 1149 (9th Cir. 2003). Since Totten, a number of methods have developed to allow judicial review while maintaining the secrecy of classified information. Id. at 1148—49. The Does used many of these methods in their suit: the Does proceeded under pseudonyms, used only non-identifying details, and cleared all of their pleadings with the CIA before filing. Id. Additionally, the Ninth Circuit argued that review of documents could be conducted in camera (privately before the judge), the case records could be sealed, and the lawyers and judicial officers involved could obtain security clearances. Id. Because many safeguards have been developed since Totten, the Ninth Circuit asserted that judicial review of the Does' non-contractual claims might be possible.
According to the Ninth Circuit, one of the most important methods of ensuring that classified information is not disclosed during judicial proceedings is the state secrets privilege. Doe v. Tenet, 329 F.3d 1135, 1149—1151 (9th Cir. 2003). The Ninth Circuit held that Totten had been incorporated into the modern state secrets doctrine as articulated in United States v. Reynolds, 345 U.S. 1 (1953). In order to prevent classified information from being revealed in the Does' non-contractual claims, the Ninth Circuit held that the CIA must assert the state secrets doctrine. Doe, 329 F.3d at 1150. Once the head of the CIA had formally invoked the state secrets privilege and the court had investigated to make sure there was a reasonable risk of disclosure, the state secrets privilege would have allowed the CIA absolute protection from having to reveal information through discovery. Id. at 1152. Although the Ninth Circuit gave the CIA the opportunity to assert the state secrets privilege, the CIA refused to do so. Id.
In his dissent to the Ninth Circuit's majority opinion, Circuit Judge Tallman objected that Totten's ban on judicial review of secret espionage agreements and Reynolds' state secrets privilege are distinct doctrines that have not been combined by the Supreme Court. Doe v. Tenet, 329 F.3d 1135, 1157—58 (9th Cir. 2003) (Tallman, J., dissenting). The state secrets doctrine functions to exclude classified information during discovery, while Totten prevents the judiciary from having jurisdiction to hear suits over espionage contracts at all. Id. Although the state secrets doctrine might result in dismissal if the plaintiff is unable to prove her case because she does not have access to sufficient information, Totten requires dismissal based solely on the subject-matter of the case. Id. at 1158—59. Reynolds itself distinguishes Totten, pointing out that there are some suits in which the basis of the case is itself a state secret. See id. at 1158.
Additionally, Judge Tallman argued that Totten is not limited to suits for breach of contract, but instead Totten bars all claims arising from a secret agreement with the government, including tort and constitutional claims. Doe v. Tenet, 329 F.3d 1135, 1160 (9th Cir. 2003) (Tallman, J., dissenting). The Does' due process and estoppel claims would still require the Does to prove the existence of some relationship with the CIA; that relationship itself is the classified information. Id. at 1161. In support of his position that Totten bars judicial review of a broad category of suits based on classified information, Judge Tallman cites Weinberger v. Catholic Action of Hawaii/Peace Education Project, 454 U.S. 139 (1981), in which the Supreme Court concluded that Totten prevented the judiciary from reviewing the Navy's refusal to release a hypothetical environmental impact statement regarding a magazine capable of storing nuclear weapons. Doe, 329 F.3d at 1161 (Tallman, J., dissenting). Weinberger was not about an espionage contract, but rather fell under the much broader category of cases "the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential." Totten v. United States, 92 U.S. 105, 107 (1875).
2. Should Totten be revisited?
In his conclusion, dissenting Circuit Judge Tallman noted that there has been no change in the law regarding secret espionage contracts since Totten in 1875. Doe v. Tenet, 329 F.3d 1135, 1166—67 (9th Cir. 2003) (Tallman, J., dissenting). In order to conclude that Totten does not bar the Does' suit, Judge Tallman asserted, the Supreme Court will have to reconsider the Totten doctrine. Id.
Judge Tallman's dissenting opinion makes it clear that the current case law firmly supports him in the view that Tottenprevents the Does from being heard in court. However, underlying the Ninth Circuit's majority opinion is the concern that the Does will be denied review of important constitutional claims. Without some sort of review, the Does, after engaging in dangerous espionage for the CIA, will be denied the financial assistance that the CIA promised them in order to provide for their livelihood and security. The Ninth Circuit majority sought a way around Totten in order to give the Does a chance to be heard. This same sense of fairness may prompt the Supreme Court to reconsider Totten in light of concerns of the twenty-first, rather than nineteenth, century.
In deciding this issue, the Supreme Court will have to weigh the harm to individual plaintiffs like the Does against the potential harm to the nation if the CIA is forced to reveal classified information in court. The Supreme Court reaffirmed Totten's