Contracts (Espionage)

• Author: International Law Group

John and Jane Doe, husband and wife, claim to be two former Cold War spies. Alleging that the Central Intelligence Agency (CIA) reneged on their compensation agreement, they sued the CIA and the U.S. in district court. The Does claim to have been citizens of a country formerly hostile to the U.S., for which John Doe served as a high-ranking diplomat. Allegedly promising financial and personal security for life, the CIA talked them into staying at their posts and providing valuable espionage services. Later they immigrated to the U.S., apparently with CIA support, and John found a job in Washington State.

When John lost his job in 1997, however, the CIA refused to furnish financial support. The Does now claim that the CIA had violated their procedural and substantive due process rights [1] by denying them financial support and [2] by using unfair procedures for reviewing their claims.

The district court and the Ninth Circuit essentially decided that the lawsuit was permissible. The U.S. Supreme Court, however, in an opinion by Chief Justice William H. Rehnquist, unanimously reverses.

In Totten v. United States, 92 U.S. 105 (1876), the Court had held that public policy barred a Civil War spy's estate from bringing a court action to enforce a secret espionage agreement. "When invoking the 'well established' state secrets doctrine, we indeed looked to Totten [see also United States v. Reynolds, 345 U.S. 1, 7 n. 11 (1953)]. ... But that in no way signaled our retreat from Totten's broader holding that lawsuits premised on alleged espionage agreements are altogether forbidden."

"Indeed, our opinion in Reynolds refutes this very suggestion: Citing Totten as a case 'where the very subject matter of the action, a contract to perform espionage, was a matter of state secret,' we declared that such a case was to be 'dismissed on the pleadings without ever reaching the question of evidence, since it was so obvious that the action should never prevail over the privilege.'..."

"There...