[JURIST] Unanimously reversing a Ninth Circuit ruling [PDF], the US Supreme Court ruled Wednesday in Tenet v. Doe [case backgrounder from Duke Law School] that two former spies for the CIA could not sue the agency for support after it had backed out of an alleged agreement to provide them with permanent stipends. The two, designated John and Jane Doe, had originally sought to defect from a foreign country but had agreed to become spies for the United States instead; after 1987 they relocated to Seattle with new identities provided by the government and became US citizens. The agency initially paid them an annual stipend of $27,000, which was terminated when one of them obtained a job pushing their income over that level, but despite promises that the agency would "always be there" the stipend was not renewed in 1997 when the employed former spy lost his job. Chief Justice Rehnquist wrote for the court:
We reverse because this holding contravenes the longstanding rule, announced more than a century ago in Totten, prohibiting suits against the Government based on covert espionage agreements....Read the full opinion [PDF], together with a concurrence by Justice Stevens and a second concurrence, replying to Stevens, by Justice Scalia. AP has more.
The state secrets privilege and the more frequent use of in camera judicial proceedings simply cannot provide the absolute protection we found necessary in enunciating the Totten rule. The possibility that a suit may proceed and an espionage relationship may be revealed, if the state secrets privilege is found not to apply, is unacceptable: "Even a small chance that some court will order disclosure of a source?s identity could well impair intelligence gathering and cause sources to 'close up like a clam.' CIA v. Sims, 471 U. S. 159, 175 (1985). Forcing the Government to litigate these claims would also make it vulnerable to "graymail," i.e., individual lawsuits brought to induce the CIA to settle a case (or prevent its filing) out of fear that any effort to litigate the action would reveal classified information that may undermine ongoing covert operations. And requiring the Government to invoke the privilege on a case-by-case basis risks the perception that it is either confirming or denying relationships with individual plaintiffs.