The Supreme Court seemed inclined to back the CIA's freedom to cut secret deals with foreign spies yesterday, as the justices poured skepticism on a claim by two Soviet bloc defectors that the agency owes them a fair hearing on their allegations that it reneged on a promise to subsidize them for life in return for secret intelligence.
Members of the court repeatedly pressed an attorney for the defectors, a married couple known in the case as John and Jane Doe, to explain why it should permit them to sue the agency, given that Supreme Court precedent dating from 1875 says that espionage contracts are unenforceable in court.
The lawyer, David J. Burman, told the court that his clients were suing not to enforce the espionage contract but rather to enforce a constitutional right to due process. "We have standing to make a claim to fair procedures," he said.
But several justices objected that they would not be in a position to make such a demand if not for the espionage contract.
"Whatever due-process rights you have depends on being spies," Justice David H. Souter said.
The court's apparent tilt yesterday suggests that the Bush administration may win a national-security-related case this term after losing in cases related to terrorism detainees last term.
In those cases, the court ruled that U.S. citizens could not be held as "enemy combatants" without an opportunity to contest the charges at a hearing, and that detainees at Guantanamo could seek their liberty in U.S. courts.
Yesterday's case, Tenet v. Doe, No. 03-1395, has attracted attention as a test of whether the court would impose further legal controls on the executive branch's conduct of clandestine operations while the CIA and other intelligence agencies are pushing hard to recruit new agents.
It emerges from the Cold War-era defection of a Soviet bloc diplomat and his wife, who agreed to gather intelligence secretly for the CIA in a third country in return for subsequent resettlement in the United States and what they say was a CIA guarantee of lifetime economic security. When John Doe lost his CIA-arranged job at a bank in 1997, he asked the agency to resume paying him directly, but the agency refused.
The CIA urged the courts to dismiss the Does' subsequent lawsuit, arguing that it was barred by the Supreme Court's 1875 decision in Totten v. U.S., in which the court held that the heirs of a Civil War spy for the North could not sue for payments allegedly promised by President Abraham Lincoln. Two lower courts sided with the Does, setting the stage for the CIA appeal the court heard yesterday.
The session had more intrigue than the usual Supreme Court argument, with Justice Antonin Scalia dropping references to "Langley" -- the CIA headquarters -- and the Does' attorney remarking that even he did not know their real identities.
The CIA supplied the Does with new names and résumés before they obtained jobs in the Seattle area.
Acting Solicitor General Paul D. Clement told the court that "when you enter into an espionage relationship, you understand that you have no protection under the law."
"It has been ever thus," he added.
"Could you torture an agent if you were dissatisfied with his work?" Justice John Paul Stevens asked.
No, Clement said, because that would raise constitutional issues regardless of whether the person being tortured were an espionage agent.
A decision in the case is expected by July.
