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Justices Fear CIA Agents' Lawsuit Would Expose Secrets

WASHINGTON — Supreme Court justices considering a lawsuit by former Cold War spies against the CIA expressed skepticism today that the case could proceed without exposing secrets or violating a ban on such lawsuits that dates nearly to the Civil War.

The justices spent much of their time during oral arguments challenging the plaintiffs to explain why their suit should not be blocked by an 1875 Supreme Court decision that barred ex-spies from bringing legal claims against the U.S. government.

At one point, Justice David 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 hour-long session in which the court began weighing a case that has 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 resettle in Seattle in the 1980s, and provided financial support for several years. But the agency cut off the stipend after the husband landed a job with a Seattle bank. The agency refused to restart payments when the husband was 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 do a better job recruiting overseas informants. The Soviet bloc diplomat and his wife have not been identified. They are listed in court documents as John and Jane Doe.

David J. Burman, an attorney representing the plaintiffs, argued that the 1875 case would have been decided differently if it were to be tried today, in part because modern courts are better equipped to hear cases and protect sensitive information from being disclosed publicly.

Indeed, Burman said that even he is "not aware" of the Does' true identities, although other attorneys involved in the case know their names.

But several justices challenged the idea that modern courts are 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 location of the CIA's headquarters in Virginia. "Trust me, it doesn't."

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

If ex-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 merely 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 1875, when the court rejected a claim brought by the heirs of a man who had been hired by President Abraham Lincoln to spy on the Confederacy, and then could not get the government to honor the agreement after Lincoln had been assassinated.

The Supreme Court's decision is expected in several months.

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