Can a Spy Sue the Government If It Cheats Him Out of a Paycheck?

What are the legal rights of a fired spy?

That's the question that confronted the U.S. Supreme Court on Tuesday, January 11th, when Justices heard oral arguments in John Doe v. Tenet. The case came to the Supremes from the U.S. Court of Appeals for the Ninth Circuit out in California, where a majority of the judges agreed with the federal trial court in Washington State that Doe and his wife have a valid claim. The appeals court judges who thought otherwise, and filed a dissenting opinion, summed up the key facts as follows:

"Mr. Doe was a diplomat for one of the [East European] 'republics.' He sought to defect to the United States. He and Mrs. Doe allegedly made a deal with the CIA. Mr. Doe would stay in his position for a while and spy for us, and the CIA would then arrange the Does' defection and resettlement, and ensure their personal and financial security for the rest of their lives. All went fine for some time, with false identities and backgrounds. But then the American bank Mr. Doe worked for in Seattle merged with another, and Mr. Doe was laid off. The CIA left him without assistance, despite an earlier promise to resume financial aid if he became unemployed. The Does sued for an order directing the CIA to provide them with due process and to pay them the money they were promised."

If John and Jane Doe are fans of novelist John Le Carre, they may have read The Secret Pilgrim, which is the English spy writer's fond farewell to his most famous character, spy-master George Smiley. The setting is a graduation dinner at the Brit's school for spies, shortly after Smiley's retirement and the fall of "the Evil Empire." The school's director, an old Smiley protégée, confides to the reader, "I thought of telling him that, now that we had defeated Communism, we needed to defeat Capitalism too." Anyway, that's exactly what the Does have set out to do.

Government lawyers defending the CIA contend that the Does' suit cannot go forward "without disclosing facts that would damage national security: whether [they] actually had an espionage relationship with the CIA and, if so, the details of that relationship."

The U.S. attorneys reached all the way back to the American Civil War for a legal precedent to support their position that the Does' case deserved dismissal. Totten v. United States is an 1875 decision in which the Supreme Court said that a Civil War spy named William A. Lloyd could not pursue his claim that President Abraham Lincoln had contracted with him to spy behind the Confederate lines for $200 a month. Lloyd's estate sued the federal government, claiming that only the spy's expenses had ever been covered. The "Totten Doctrine" holds that those who spy for America cannot later sue over broken promises, because (in the words of the Ninth Circuit dissenters), "that would require exposure of matters that must be kept secret in the interest of effective foreign policy."

The federal trial judge and the majority of judges in the Ninth Circuit rejected the Doctrine, noting that new legal-process protections for state secrets had evolved in the century and a quarter since Totten was decided. Writing for the dissenters, appeals court Judge Andrew Jay Kleinfeld wrote a year ago, "Like Lloyd, [the Does] served to the great benefit of the United States in circumstances that could have gotten them killed. And like Lloyd, they allegedly got stiffed by the government providing less compensation than required by the contracts when the time came for the United States to pay up." All the same, concluded Judge Kleinfeld, "[N]o matter how much the courts have developed routines for handling assertions of official secrets, a lower court cannot overrule the Supreme Court."

In other words, it's up to the Supremes to say whether changed times justify a change in the rule of law that has governed contractual disputes between Uncle Sam and his espionage agents since the War Between the States.

As for the Does, they contend that, Mr. D. having lost his job and benefits, they may have to return to their home country in order to stretch their modest savings. This, they say, could place their lives in danger or expose them to prosecution and imprisonment.

LeCarre's George Smiley --- having across three volumes ferreted out a mole in the British espionage organization and then led the revitalized spy agency to its greatest triumph (the defection of Karla, the Soviet's own spy master) --- retired gracefully to a country cottage to write history and grow wild flowers.

The Does deserve to be treated by their Uncle Sam at least as well as that.