Justices Question Legality of Ex-Spies Suing CIA

Supreme Court justices expressed skepticism Tuesday that a lawsuit by former Cold War spies against the CIA could proceed without exposing secrets or violating a Civil War-era ban on such suits.

The justices spent much of their time during oral arguments challenging the two plaintiffs to explain why their suit should not be blocked by an 1876 Supreme Court decision that barred former spies from bringing legal claims against the U.S. government.

At one point, Justice David H. Souter underscored the magnitude of that hurdle by pointedly asking the plaintiffs how they planned to get around it. “Are you going to say, ‘We weren’t spies’?” he asked.

Souter’s remark came during an hourlong session in which the court began weighing a case that had serious implications for the CIA and its obligations to defectors and former spies.

The suit centers on the claims of a former Eastern bloc diplomat and his wife who say the CIA reneged on a promise to provide lifetime security and financial support in exchange for their service as spies.

The CIA helped the couple relocate to Seattle in 1987 and provided financial support for several years. But the agency cut off the stipend sometime after the husband landed a job with a Seattle bank, and refused to restart payments when he was subsequently laid off.

The case has called unflattering attention to the CIA’s treatment of former spies at a time when the agency is under pressure to recruit overseas informants. The Soviet bloc diplomat and his wife have not been identified, and are listed in court documents as John and Jane Doe.

David J. Burman, an attorney representing the plaintiffs, argued that the 1876 case would have been decided differently if it were tried today, in part because modern courts were better equipped to hear cases and protect sensitive information from being disclosed publicly.

But several justices challenged the idea that modern courts were more capable of keeping highly sensitive national secrets. “You think a U.S. district court has all the security facilities of Langley?” asked Justice Antonin Scalia, referring to the CIA headquarters’ location in Virginia. “Trust me, it doesn’t.”

The justices also probed aspects of the government’s case, pressing acting U.S. Solicitor Gen. Paul D. Clement to identify the boundaries of the legal protection the agency is asserting.

If former spies are barred from pursuing legal action against the CIA, Justice John Paul Stevens asked, “could you torture an agent” if the agency was unhappy with his performance, and expect to be shielded from liability?

Clement did not respond directly to the question. He argued that by bringing their lawsuit the Does had violated the terms of an agreement that was supposed to remain secret.

“They are effectively pleading themselves out of court,” Clement said.

That logic guided the Supreme Court’s ruling in 1876, when it rejected a claim brought by the heir of a man who had been hired by President Lincoln to spy on the Confederacy, and then could not get the government to honor the agreement after Lincoln’s assassination.

The Supreme Court will decide on the case in several months.