The Supreme Court agreed yesterday to review a lower court's decision that permitted an alleged husband-wife Cold War spy team to sue the CIA for allegedly breaking a promise to provide them financial and personal security for life after they carried out espionage for the United States.
At issue is a 130-year-old Supreme Court ruling in a Civil War espionage case that said courts cannot hear cases involving disputes over spying contracts because they involve a secret enterprise and "disclosure of the service might compromise or embarrass our government in its public duties."
In his successful petition to get the justices to review the case, Solicitor General Theodore B. Olson noted that since it was created in 1947, the CIA has been able "to obtain dismissal at the outset of such complaints" and said changing that practice would not only hurt foreign relations but also "impair the ability of the CIA to conduct clandestine intelligence operations."
Although the CIA has not acknowledged it hired the couple, the lawsuit filed by the pair -- under the names John and Jane Doe -- said the husband was a high-ranking Eastern European diplomat who initially wanted to defect but was persuaded to stay at his post and spy for the United States. In exchange, the couple said, the CIA promised to "arrange for their resettlement in the U.S. and ensure their financial and personal security 'for life,' " according to the opinion of the U.S. Court of Appeals for the 9th Circuit.
When their spying was over, the couple was brought to the United States under a law that permits the CIA director to waive immigration rules. The agency eventually settled the couple in Seattle with new identities, housing and other benefits, plus a yearly stipend that started at $20,000. With resumes and references supplied by the agency, the man got a job in 1987, and, as his salary increased, the CIA's stipend decreased. Within two years, his salary had hit $27,000, the amount of the stipend at that time, and the subsidy was ended. But the former spy was given assurances that if he lost his job, "his stipend would be resumed" and the CIA would "always be there" for him and his wife, according to the court opinion.
In 1997, the man lost his job and could not find another. The couple say that the CIA refused to assist in finding new employment and that eventually they turned to a lawyer.
When internal CIA appeals did not get a satisfactory result, they sued in federal court. The CIA said the 1875 Civil War ruling, known as Totten v. United States, required dismissal. In that case, the spy, William A. Lloyd, was "under a contract with President Lincoln, made in July 1861" to gather intelligence behind the South's lines for $200 a month, according to the opinion. The court ruled that Lloyd's legal action in effect broke the contract, which required secrecy.
In the current case, the district court ruled that a trial could proceed "despite the alleged existence of a secret agreement," and that national security could be protected by sealing evidence and conducting judicial review in private. The circuit court said Totten applied only when a contract exists and that the couple could continue the suit "in a manner that avoids public exposure of any secret information."
A CIA spokesman, Bill Harlow, said yesterday that the agency would not comment on the ruling.