Tenet v. Doe - Oral Argument - January 11, 2005

Tenet v. Doe

Media for Tenet v. Doe

Audio Transcription for Opinion Announcement - March 02, 2005 in Tenet v. Doe

Audio Transcription for Oral Argument - January 11, 2005 in Tenet v. Doe

John Paul Stevens:

We'll now hear argument in the case of Tenet against John Doe.

Mr. Clement.

Paul D. Clement:

Justice Stevens, and may it please the Court:

This case, like the Totten case almost 130 years ago, is at bottom an effort by alleged spies to obtain additional compensation for services rendered.

Sandra Day O'Connor:

Now, do you take the position that the Federal Government couldn't enforce any provision of such an agreement either?

Paul D. Clement:

That's correct.

That's correct, Justice O'Connor, with respect to the kind of espionage arrangements and contracts we're talking about.

Sandra Day O'Connor:

Well, suppose... suppose somebody, allegedly a former spy, is alleged to... by the Government to have breached the agreement by writing and publishing a tell-all book about it.

Paul D. Clement:

Well, Justice O'Connor, I think that actually points up the important differences between the way that the CIA deals with its employees and the way that it deals with its espionage agents like respondents are alleged to be.

Sandra Day O'Connor:

Yes, okay.

Paul D. Clement:

With respect to espionage agents--

Sandra Day O'Connor:

Would the Government be without any recourse if it was an alleged espionage agent?

Paul D. Clement:

--I believe that's true, Justice O'Connor, because the espionage agents do not sign prepublication review agreements.

They do not receive formal security clearances the way that an employee does.

And unlike an employee, they do not have access to a broad swath of classified information that raises attendant counterintelligence concerns.

And so if you think about the course of dealing that the agency has with its employees, the employees are able to sue the agency in court under, for example, title VII, and the agency can turn around and sue their employees to enforce things like the prepublication review agreement that was issue... at issue in this Court's Snepp decision.

So in the employment context, I think it's very difficult to say that there's an implied term of the employment contract that either side will not have judicial recourse.

John Paul Stevens:

But what if the employment contract is with an American citizen to act as an espionage agent and nobody else knew about it.

Would... would that... would he be treated as an espionage agent or as an employee?

Paul D. Clement:

If I understand your hypothetical, Justice Stevens, I think that individual would be treated as an espionage agent if it's just somebody for sort of a one-off assignment.

And I think that... that is illustrated by this Court's decision in Totten.

I mean, William Lloyd, for example, was a U.S. citizen.

He agreed with President Lincoln to engage in espionage activities in the south.

And this Court held that when the estate of... of Mr. Lloyd came to seek compensation from a court, that there was no judicial remedy to enforce that alleged agreement, and the remedy, if any, lay with the President's contingent fund.

Anthony M. Kennedy:

I... I'd like your help on this.

Your interpretation of Totten... does it say that there is just no actionable contract, or does it say there's no jurisdictions like political question?

I mean, you win under any of those theories, if we accept them.

But which is it?

Paul D. Clement:

Well, Justice Kennedy, it's a difficult question to answer because I think there are a lot of different strains underlying the Totten decision, and I think there is--

Sandra Day O'Connor:

Yes, but you need to get to whether there is... do you urge dismissal for lack of jurisdiction in the district court or a dismissal on the merits?