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More on Tenet v. Doe

On Wednesday, the Court, in a ten-page unanimous decision authored by Chief Justice Rehnquist, rejected the claims of two alleged former spies who challenged CIA procedures. The Does are former Eastern Bloc diplomats who claim that, when they decided to defect, they were coerced into spying for the CIA. In return, they claim, they were promised lifetime support in the United States — a promise the CIA did not fulfill. The government does not dispute this; rather, the dispute centered on whether the Does’ claims could be heard at all.

The Does’ central claim was that the CIA’s agency procedures and failure to provide support violated their substantive and procedural due process rights. The government argued that the claims should be dismissed on the basis of a Civil-War-era case, Totten v. United States, in which the Court held that a Civil War spy could not sue the government for a breach of the contract under which he spied. Totten, the government argued, presents a categorical bar to the claims here. The government also argued that the same concerns that underlie Totten – security and secrecy – are paramount today. (More on the parties’ arguments, the procedural history and the factual background can be found in my original post on the case, here.) The Ninth Circuit found that the Does could proceed on their Due Process claims; on Wednesday, the Court disagreed.

The Court accepted the government’s argument about Totten, and called the Ninth Circuit’s reading of the case “quite wrong.” While the Ninth Circuit had held that Totten governed the enforcement of contracts, and not the process claims at issue here, the Court rejected the idea that it was so limited. The Court pointed to, among other things, the language of the decision, which refers to “any suit,” and the government’s public policy rationales. On the basis of those rationales, the Court also rejected the Ninth Circuit’s assertion that the state secrets privilege, which bars discovery when state secrets are at stake, was adequate: “[t]he 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.” The Court also found the possibility of “greymail” – frivolous suits brought to force the CIA to settle – undesirable. Justice Stevens, joined by Justice Ginsburg, suggested in his one-paragraph concurrence that Congress might change the rule with regard to contracts not quite as sensitive as the one here.

For procedure buffs, a side issue in the case was the ever-vexatious question of the ordering and meaning of “jurisdictional questions” under Steel Co. v. Citizens
for Better Environment
. That case held that “jurisdictional” questions must be decided before “merits” questions. The government, in lower courts, had raised the claim that the suit, to the degree it could be brought at all, had to be brought in the Court of Federal Claims under the Tucker Act. The Court, in a footnote (albeit a nearly page-long footnote), found that the Totten rule of dismissal was a “threshold question,” and could therefore be addressed before the question whether the suit should have been brought in a different court. Justice Stevens, joined by former civil procedure professor Justice Ginsburg, suggested in his concurrence that the question whether the claim should have been heard in the Court of Federal Claims could actually be “antecedent” to the Totten question. Justice Scalia, author of the majority opinion in Steel Co., concurred separately to strenuously disagree.