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

Media for Tenet v. Doe

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

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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?

Sandra Day O’Connor:

It’s not clear to me at all.

Paul D. Clement:

–Well, Justice O’Connor, I think it’s better understood as simply a rule of dismissal, that it’s not really a pure jurisdictional defect.

It’s been referred alternatively as a jurisdictional bar or as a rule of dismissal, and of course, as this Court reminded us recently in the Kontrick decision, people tend to use terms like jurisdiction loosely in these contexts.

Anthony M. Kennedy:

Well, I’m… I’m not going away with a clear idea of your position.

Paul D. Clement:

Well–

Anthony M. Kennedy:

Do I… do I… does the Government file under 12(b)(1) like a jurisdiction, 12(b)(6), no cause of action?

Of course, you’d probably do both, but I… I want to know–

Paul D. Clement:

–Well–

Anthony M. Kennedy:

–what your best thinking is of what Totten means.

It seems to me that this just means that there can be no contract formed under these circumstances.

Paul D. Clement:

–Justice Kennedy, I think the general practice of the Government is to file under both.

I believe that’s what happened here.

I think the fact that we file under both suggests that there is a little bit of confusion about it.

I would tend to agree with you it’s better understood as a rule of dismissal under 12(b)(6) because if you think about the Totten decision, there’s really two strains to the decision.

One is a recognition that the claim to relief necessarily depends on a fact that the law has always regarded as secret, and in a sense that case simply can’t proceed.

And that’s very analogous to this Court’s holding in Weinberger against Catholic Action.

There’s a second strain to the case, though, and that is that the very idea of walking into court and filing the action is inconsistent with an implied term of the contract or, indeed, the whole nature of the espionage relationship.

And I think particularly if you emphasize that second strain of the Totten decision, I think it’s better understood as a 12(b)(6) dismissal because what you’re really saying is somebody is walking into court and they are effectively pleading themselves out of court because as… if you look at this complaint here, it starts out with a recitation of the fact that these individuals allegedly engaged in espionage activities and that they were denied certain promises that were made to them after they carried out, quote, their end of the bargain.

Anthony M. Kennedy:

If there’s no cause of action, there’s nothing to… to claim on, what’s… what’s the closest analogy?

Is it like a promise to make a gift, which is unenforceable?

Is there kind of a contract analogy that we can use?

Paul D. Clement:

I… I mean, I… you know, one… one way of thinking about it, but I think it’s a very rough analogy, is it’s almost like an unlawful contract.

It’s a contract that the law just doesn’t recognize.

And I think that… that reflects the underlying reality of these cases, which is there is something inherent in an espionage relationship that when you enter an espionage relationship, you understand that you have no protected status under the law.

I think that has, with respect, been clear in the… not just in the Totten decision but from the very beginning of the republic.

I mean, ever since Nathan Hale agreed to cross British lines as a spy, it was understood that he had no legal recourse, that he had a status that was not recognized in the law.

And I think that is… it has always been thus, and I think there is no reason to revisit the–

John Paul Stevens:

Does… does that mean… the no legal recourse at all mean that you could torture an agent if you were dissatisfied with his work performance?

Paul D. Clement:

–I… I don’t believe that’s true, Justice Stevens, and what I would distinguish is between a constitutional claim that an… an agent… an alleged agent might have that doesn’t depend on the espionage relationship.

As I would understand your question, I mean, it would… there would be a… a substantive due process claim that anybody could bring if the Government tortured them.

Paul D. Clement:

They wouldn’t have to allege that I had a secret espionage relationship with the Government and then they tortured me.

That would be irrelevant to their claim.

Antonin Scalia:

Could I… could I bring your back to your… your earlier discussion of a spy who is also a… a Government employee?

Are you telling me that he… he cannot sue for his regular salary simply because the work he was doing was… was espionage?

I mean, he’s… he’s a GS-whatever, GS-16, and the Government just doesn’t send him his monthly check.

Paul D. Clement:

Well, Justice–

Antonin Scalia:

He has no recourse for that check just because he’s been doing spy work?

Paul D. Clement:

–No, that’s not the position, and… and I… and I apologize if I gave that impression in answering Justice Stevens’ hypothetical.

I understood to be the hypothetical that you had a Government employee who engaged in a separate spy endeavor, if you will, and then tried to sue to collect on the damages owed under that… for that particular endeavor.

Antonin Scalia:

Okay, not… not for his regular GS salary.

John Paul Stevens:

No.

My… my hypothetical was an individual who’s not a Government employee but is hired by the Government to engage in espionage activities.

Paul D. Clement:

Exactly.

And as I indicated to you earlier, Justice Stevens… but in a sense that’s not a hypothetical.

That’s the Totten decision itself.

William Lloyd was… or at least alleged that he was employed by President Lincoln to engage in those services.

And in answer to Justice Scalia’s question, if William Lloyd happen to be an employee of the… of the Comptroller of Currency or something, he could still sue to get whatever remedies he had–

Antonin Scalia:

He couldn’t get the 5,000 bonus for being a spy.

Right?

Paul D. Clement:

–That’s exactly right.

No bonus dollars for being a spy under those circumstances.

Ruth Bader Ginsburg:

Could you clarify on the employment question something else?

It’s… it’s in your reply brief and you say you’re contrasting this type of claim with a title VII claim which… in which you say that the Court in Webster relied on the CIA’s historical practice of litigating employment disputes.

The CIA’s historical practice, not the Court’s rulings.

Are you suggesting that even with respect to employment litigation, it’s up to the CIA to decide what its practice will be?

Paul D. Clement:

I don’t think so, Justice Ginsburg, but the point is that the reason that… that I think that the Government would have had almost no ability to invoke a Totten-type defense in Webster or in a title VII case is because of its course of dealing with its employees.

And I suppose that if the agency completely changed its course of dealing with respect to its employees or entered a very different course of dealing with certain select employees, then a Totten defense might become available in those circumstances.

But as I indicated earlier, I think if you look at the overall nature of the agency’s relationship and rights vis-a-vis its employees, even its covert ones, that’s a very different relationship than the agency has with respect to espionage agents.

And again, that’s because they enter contracts with them.

Each side has certain litigation rights, and I think it would be a bit of a stretch for the Government to come in and say that there’s an implied term of that employment agreement that forecloses a judicial remedy.

Ruth Bader Ginsburg:

May I–

Antonin Scalia:

I guess the Government can’t enforce… cannot enforce these contracts either.

Right?

I mean, you take the good with the… the bad with the good?

Paul D. Clement:

That’s exactly right, Justice Scalia.

Antonin Scalia:

You’ve never sued a spy to… who hasn’t carried out his mission?

Paul D. Clement:

Certainly not… I’m not aware of such a suit, and I’ve been told by the agency that it’s impossible.

And I think it just reflects the nature of these agreements, and it does… it–

Ruth Bader Ginsburg:

–Can… can we go back to the… another threshold question?

You did press below and Judge Tallman urged that the reason this case can’t be in the district court in California, or wherever, is it has to be in the Federal Circuit.

This is a contract claim against the Government.

Are you abandoning that position?

Paul D. Clement:

–Yes, Justice Ginsburg, in fact we have abandoned it.

We abandoned that position at the cert stage.

We made that clear to the Court in our certiorari papers, and we don’t renew any type of jurisdictional objection at this stage.

Ruth Bader Ginsburg:

Are you free… are you free to abandon it?

Is the… is the Government’s surrender of its immunity from suit for contracts, provided that the suit is brought in the Federal Circuit… is that something that you are free… Congress having said that, that the executive is free to say, well, we could take advantage of that, but we don’t want to?

Paul D. Clement:

Justice Ginsburg, I think the answer to that is that it probably is jurisdictional in the pure sense and so if this Court disagreed with our view that there wasn’t a Tucker Act problem, this Court could reach that issue and send the case back on the Tucker Act grounds.

So maybe I could explain to you why it is that we think that there’s not a Tucker Act problem, at least at this stage of the litigation.

The Ninth Circuit’s reasoning on this was a little bit oblique, but as I understand it, there were two parts to it.

First of all, that there might be some kind of substantive due process claim here that did not depend on the contract but rather somehow stemmed from the fact that there was some endangerment of these individuals and that gave rise to some substantive due process right.

And even if that claim, as the Ninth Circuit recognized, is not one that is formed on the contract or an implied contract, it seems to me that that’s a claim that’s clearly within the coverage of the Totten doctrine because it is inherent in the espionage relationship that the individual will be engaged in a… in a situation where they will be endangered.

And I think that was certainly true of William Lloyd in the Totten case.

When he crossed southern lines, he was very much endangered, and that’s something that wasn’t lost on President Lincoln.

In footnote 3 of our opening brief, we have a quotation from President Lincoln about the inherent dangers of spies crossing lines and the need for secrecy to protect that.

So that’s why I think that claim is properly understood as not being covered by the Tucker Act and not being required to be brought in the Court of Claims, but nonetheless a claim that is barred by the Totten doctrine.

The other point they made was with respect to the specific regulations that the agency has internally, and they suggest that there might be a claim here that was based on the regulations independent of the contract.

But in order for that claim to go forward, the Court would have to examine the unredacted version of the regulations.

And even if the Court is right that there’s a need for further proceedings on that question, it makes no sense to interpret the doctrine in a way that requires the Government to wait to assert a Totten defense until there is a jurisdictional question cleared up that actually requires discovery because I think what Totten recognized is… is there is a need to dismiss the claim at the outset before any discovery because of the nature of the suit.

So for those two reasons, we thought that the… that the better view was that the Tucker Act problem was either not presented because of the substantive due process claim or not ripe and that we would pursue the Totten act.

Antonin Scalia:

That… that would make a lot of sense if you really felt that what Totten is is… is a dismissal on the merits, just saying there’s… there’s no contractual claim.

I… I mean, if you didn’t believe that, if… if you believed that what Totten says is we have no jurisdiction, then we’d have no problem and we could resolve all of the questions.

But it seems to me if you believe that Totten is based mainly… you know, it’s a contract case and said the contract is just totally invalid, we shouldn’t be reaching the contract issue.

We should simply say that if… if we agree with you, that there’s no substantive due process claim here and… and no claim based on the regulations.

How do we get the authority to decide the… the contract question?

Paul D. Clement:

Well, I think whatever the status the contract question has, whether it’s 12(b)(1) or 12(b)(6), I think it’s a… it’s a threshold issue and I think this Court under the Rohrgas authority can reach that issue at the outset.

And I think it would be particularly perplexing to have a doctrine that said that when we have a suit that we know on the face of the complaint cannot be brought in any court, that we are going to not reach that issue in favor of trying to determine first which court it properly belongs in, when that inquiry in fact will get us into the exact classified information that we know at the outset the suit should not involve in the first place.

And I think there is enough flexibility in this Court’s Rohrgas decision to allow the Court to reach that threshold question first.

Anthony M. Kennedy:

And you’re saying that if there’s no contract, then there’s no substantive liberty to protect under the… under due process procedures.

Paul D. Clement:

I… I think that follows, Justice Kennedy.

I think one of the difficulties with the constitutional theory that’s advanced on the other side is it gives… it seeks a right to enforce internal procedural handling mechanisms for claims that we know there’s no legitimate expectation for their enforcement at all.

And it seems odd that this would develop in a way where the procedural rights somehow trump the substantive rights, and we know from Totten that there is no substance here that can be brought forward in the courts.

I think in this respect it is also important to recognize that, as a practical matter, an agent who’s negotiating in the shadow of the Totten decision and the broader understanding that Totten reflects is likely to seek assurances not just about compensation but about how… how their claims would be heard by the CIA and how they’re going to get their compensation.

And I think there’s no particular reason to think procedural assurances should be judicially enforceable when the substantive assurances are not.

Now, one other point to make about the nature of these agreements.

Not only because of the nature of these agreements does the agency end up in a position where it cannot enforce these contracts itself through judicial actions, but it also ends up in a situation where it may have to give up-front payments that it otherwise wouldn’t have to give and the like.

So there are consequences to both sides of dealing in this way with these espionage relationships as effectively outside the law.

But again, it has always been thus, and I think there is no principle in… in any recent development that requires this Court to revisit the rule of Totten which, as I said, suggests an… it reflects an understanding that date backs… dates back much further.

If I can make one other point, which is I think even though the Totten decision reflects something more than the state secrets privilege, because there’s a more fundamental defect with a suit that’s premised on an espionage agreement than just the fact that it tends to compromise secret information, it is true that applying the Totten rule of dismissal does provide a clear mechanism that protects confidential information.

And I would analogize it to this Court’s decision in Snepp where the Court adopted a constructive trust arrangement.

The Court adopted that arrangement where… where an employee who violated a… a prepublication review agreement had to turn over all the proceeds to the Government.

And… and the Court adopted that remedy in favor of a damages remedy, and the Court did so to send a clear signal to the employees that there is no incentive whatsoever to violate the terms of these agreements.

In the same way, having a clear rule of dismissal sends a clear message to espionage agents that there’s no point in even bothering to file the suit in the first place.

It will simply be dismissed.

Antonin Scalia:

Mr. Clement, the–

John Paul Stevens:

Mr.–

Antonin Scalia:

–Go ahead.

I’m sorry.

John Paul Stevens:

–I just wanted to ask one.

I don’t remember whether the briefs discuss it or not, but is there a statute that prohibits the disclosure of secret agents like this and does that… if so, does that have any relevance to this case?

Paul D. Clement:

Justice Stevens, there is such a statute.

There’s a statutory provision that gives the authority.

It had been with the… with the Director of Central Intelligence.

The recent Intelligence Reform Act has transferred it to the Director of National Intelligence.

But it gives a requirement that the… that… that the director protect sources and methods.

I think that that… that statutory provision is consistent with the general notion behind the Totten doctrine, but I don’t think it’s–

John Paul Stevens:

And does the statute impose a penalty on anyone for revealing the name of a secret agent?

Paul D. Clement:

–I don’t think it… it certainly doesn’t impose any kind of monetary penalty.

There are, under certain circumstances, criminal penalties for the disclosure of classified information, but I think that the–

John Paul Stevens:

But is the identity of an agent a… a type of classified information protected by the statute?

Paul D. Clement:

–I think it is.

It’s protected both by the sources and method provision, and I think revelation of a source could implicate the… the criminal prohibitions in the statute as well.

And I think that this statute… I think you can see the extent to which this… this case implicates the core of the secrets that the agency has.

This Court in the Sims case described the sources and methods protected by the statute as the heart of the intelligence community.

Antonin Scalia:

Mr. Clement–

Paul D. Clement:

And this case involves both.

Antonin Scalia:

–the… the argument made by the other side, which seems to me has some plausibility to it, is that Totten was decided in an age when courts were not as flexible as they are today.

We… we have procedures for matters being kept confidential by courts.

We… we allow hearings that are closed in matters that never would have been done before.

And since, the argument goes, the… the only purpose of Totten was to preserve the secrets, why can’t we preserve the secrets that way?

If and when it turns out that the prosecution of this… of this suit would require a secret to be disclosed, we will terminate it or… but… but up until then, why… why decide in advance?

Why not take a… take a run at it and see?

Paul D. Clement:

Well, Justice Scalia, there’s a couple of points to be made about that.

One, as this Court recognized in Reynolds… in the Reynolds state secrets context itself, even the provisions of going forward, no matter what innovations have been made, the… the provisions of going forward and handling classified information necessarily involve risks that the information will be disclosed.

In the first place, both Totten and the state secrets privilege itself are premised on the notion that the information, if it is in fact privileged, is withheld from the case.

It’s an absolute privilege.

So the idea is not that you have some sort of limited disclosure to the court personnel and to the ultimate fact-finder in the case and that’s somehow all consistent with the state secrets privilege.

To the contrary.

Once a determination is made that a matter is state secrets, there’s no further disclosure of the information.

You… the whole premise of state secrets is not that you try to prevent ultimate disclosure to the general public.

Paul D. Clement:

It’s that once something is privileged, you… you treat the matter as privileged and you take it out of the case.

Ruth Bader Ginsburg:

But you’re not making that statement with respect to anything that’s classified.

There was something in your brief, reply brief, at 18 and 19 in which you… you cite Reynolds and you say the proper response to classified information in civil litigation is to disregard the classified information, not to order partial disclosure to court personnel.

Are… are you saying then in all of civil litigation if information is classified, then it’s just out of the case?

Paul D. Clement:

Justice Ginsburg, I think there can be certain arrangements in certain civil litigation where the Government can agree with a party to proceed… as part of their overall agreement, to proceed on the basis of classified information, but that would involve a very different way of… of proceeding than the normal default rules.

And I think absent some kind of agreement for the Government to proceed in that way, the default rule in civil litigation has always been that the privilege is just that.

It’s… the matter is… the matter is privileged and it’s taken out of the case.

Antonin Scalia:

But you lose.

I mean, if… if that matter is necessary for your case, don’t… don’t you lose?

Paul D. Clement:

Absolutely not, Justice Scalia, not in civil litigation.

And that’s why the state secrets privilege is, I mean, quite a remarkable doctrine in the civil side of the case.

Antonin Scalia:

You’re talking about civil only.

Paul D. Clement:

Only civil.

Antonin Scalia:

I’m thinking of gray mail.

Certainly in the criminal… criminal area, that isn’t the case.

Paul D. Clement:

That’s exactly right, Justice Scalia.

Antonin Scalia:

You either cough it up or you lose.

Paul D. Clement:

Right, and a different bargain has been reached in the criminal context, and in that context to ameliorate the consequence of the sometimes difficult choice of revealing classified information or proceeding, the Congress has come through with the Classified Information Procedures Act.

That only applies in the criminal side, though.

Stephen G. Breyer:

I just want to ask one question.

Don’t they have a claim interpreted favorably to them that this has nothing to do with a contract, totally nothing?

Okay?

But there happen to be some rules over there in the CIA in their books somewhere, which we’ve never read, and they say when we use a foreign person as a spy, we’ll pay him some money or we give him something.

We have some procedures.

Now, we don’t have to do that as a matter of contract.

We don’t have to do it at all, but we do it.

And so there’s a claim here that we want to see that they’re following their own rules.

They say Totten doesn’t apply to that because Totten is about contracts.

Our claim isn’t about contracts.

Paul D. Clement:

Justice Breyer, I have two responses to that.

Paul D. Clement:

The first is I think the… that the Totten doctrine extends more broadly than just the narrow confines of the contract.

Stephen G. Breyer:

But it doesn’t extend to torts, does it?

Paul D. Clement:

I would… I mean, I would need a specific hypothetical.

I can’t imagine a tort that by its nature–

Stephen G. Breyer:

Oh, you go–

Paul D. Clement:

–depends on the relationship.

Stephen G. Breyer:

–You go ahead.

You go ahead.

Paul D. Clement:

I can’t imagine a tort that depends on its very nature on the relationship.

But we’re talking about regulations that, as I understand the other side’s allegations, are regulations for handling secret contracts.

So unless one can allege that they were a party to a secret contract or at least a secret relationship, there’s no point in that individual even being in a position… they wouldn’t even have standing to challenge the regulation.

Stephen G. Breyer:

So… so you’re saying if in fact, when you look at those allegations, they’re about regulations for handling secret contracts, it’s about a contract, but if there were to be an allegation that has nothing to do with the contract at all, it’s just a way we handle retired foreign spies, Smiley for example, or someone like that.

It has nothing to do with it, you see.

Then could they… what would be the rules then?

Paul D. Clement:

I still think the answer would be that there would be no relief under that circumstance because their… their… still their claim to having any entitlement under those rules at all would… I mean, you know, total strangers don’t have rights under those regulations.

Alleged spies would have rights under those regulations, and the very idea of walking into court and asserting your rights as an alleged spy is inconsistent with the entire relationship and the contract that gave rise to it.

I would also point you to the Weinberger decision, Weinberger against Catholic Action, because there this Court applied Totten to not force the Navy to produce an environmental impact statement even though there were regulations on the book… and the concurring Justices focused on those regulations… where the Department of Defense said we do produce an environmental impact statement even if it’s classified.

So I think on the authority of Weinberger as well, the very fact that there are internal regulations on a subject, the entire subject matter of which is secret, doesn’t give rise to judicially enforceable rights.

If there are no further questions, I’d like to reserve the time for rebuttal.

John Paul Stevens:

Mr. Burman.

David J. Burman:

Justice Stevens, and may it please the Court:

First, with respect to the question about the due process rights below, I would note that the Government does not challenge, and specifically said so in footnote 2 of the petition for cert and footnote 1 in their brief on the merits, whether there is a due process claim here.

I would encourage you… and I will come back to the due process question if you’re interested.

I’d encourage you to look at the respondents’ appendix, pages 72 to 74, where the CIA employee described the fact that there are, in fact, regulations that are not limited to enforcing a secret contract.

That is not our claim.

David H. Souter:

But they are regulations that the… that depend upon the existence of a spy-principal relationship–

David J. Burman:

Actually we don’t believe that’s correct, Your Honor.

We believe that–

David H. Souter:

–Well, are you claiming that your… your people are… were not spies?

David J. Burman:

–We allege that they were coerced into that relationship, but we do–

David H. Souter:

Well, however got there–

David J. Burman:

–Correct.

David H. Souter:

–they… they… your claim is that they’re spies and that, therefore, whatever your procedural claims may be, whatever your substantive due process rights may be, as I understand it, depends upon the assumption of a spy-principal relationship.

David J. Burman:

We do not agree with that, Your Honor.

David H. Souter:

Why?

David J. Burman:

We believe that PL-110 allowed the admission of people essential to the United States without any comment on whether they had formerly been spies and that these regulations do not require us to prove as an essential element even to the CIA, much less to the district court–

Antonin Scalia:

You–

David J. Burman:

–that they were spies for the CIA.

Antonin Scalia:

–you don’t have to prove that they were spies, but you have to prove that… that they had a contractual relationship with the United States.

And the only contractual relationship you’re asserting is the relationship of a spy.

David J. Burman:

We disagree with that, Your Honor.

Antonin Scalia:

Oh–

David J. Burman:

We do not believe… and in fact, the Ninth Circuit went out of its way to make very clear to the district court that if we try to plead around and base a claim on a contract, the district court should dismiss that.

Antonin Scalia:

–Now, wait.

What… what is the basis on which you assert these regulations are applicable to you–

David J. Burman:

We–

Antonin Scalia:

–to your client?

David J. Burman:

–we say that the… we believe we can show, once we are allowed to proceed… and it’s premature at this time to decide whether we’ll be successful in this or not.

We believe we can show that the CIA has internal regulations that say as to PL-110 resettlees, we will provide continued financial and security support in these circumstances, a need-based standard.

Antonin Scalia:

And… and the agency comes in and says, prove that you’re a PL-110 resettlee.

David J. Burman:

The agency–

Antonin Scalia:

And… and what is your response to that?

David J. Burman:

–The agency has never–

Antonin Scalia:

Your response is I was resettled because I was a spy.

David J. Burman:

–No.

We don’t have to say that.

We can say we were resettled under PL-110, which they have to inform at the time the INS Commissioner that they were bringing in people as PL-110 resettlees.

They’re not required to tell the INS Commissioner that they were spies, just that they’re essential.

David H. Souter:

What if… what if the Government takes a slightly different tack and… and you bring your essentially PL-110 neutral claim, and the Government says, the only relationship upon which this claim can be based by these particular Does is a spy relationship?

We claim privilege, and on the basis of that privilege, we… we claim dismissal.

David H. Souter:

What is your response to that?

David J. Burman:

If that were an essential element of our claim, which we believe it is not–

David H. Souter:

Well, they’re not saying it’s an essential element in the sense that only a spy can make a 110 claim.

They’re saying that the only basis upon which you can make a 110 claim is the spy relationship.

You have no other.

How do you respond to that?

David J. Burman:

–Hence the reason we brought the case as Does.

A procedure that was not known for that purpose at the time of Totten, that their own information officer and their brief and their position in Webster admits preserves the identity, preserves the secret.

They acknowledge–

David H. Souter:

But, look, you’re talking about procedural means.

I want to know what your immediate response to their claim of privilege is.

Are you going to say we weren’t spies?

David J. Burman:

–The advantage of the Reynolds procedure is if they had made the claim of privilege, we would know what they were claiming was privileged.

David H. Souter:

They are making the claim of privilege on the ground that the only basis for your 110 claim is or can be, on facts known to them, that your clients were spies.

Do you respond by saying, yes, we were spies, or do you respond by saying, we weren’t spies?

David J. Burman:

We respond by saying we have an entitlement to a fair process within the agency, a confidential process–

David H. Souter:

Let’s assume that you have a really obnoxious court–

[Laughter]

–that wants a substantive response, do you respond by saying they’re right, we’re spies, or they’re wrong, we weren’t spies?

David J. Burman:

–If their position is that they can’t confirm or deny to the district court whether we were spies–

David H. Souter:

They are claiming a privilege on the grounds that the only basis for your claim can possibly be the spy relationship based on facts known to them.

In order to defeat that privilege, you’ve got at least to start by saying, no, we weren’t spies and we don’t claim to be.

Are you going to say that or aren’t you?

David J. Burman:

–We are not going to say we were not spies.

We are going to–

David H. Souter:

Then I don’t know why you’re not out of court on Totten.

David J. Burman:

–Because we are not claiming the benefit of a bargain to be a spy.

We are not seeking compensation–

Stephen G. Breyer:

What is a PL–

David H. Souter:

You are… you are–

Stephen G. Breyer:

–What is a PL-110 settlee?

David J. Burman:

–A PL-110 resettlee allowed the CIA and the FBI to bring in up to 100 people per year that were deemed essential to the U.S. They could have been simply very important scientists who wished to defect.

Stephen G. Breyer:

Okay.

So you would say this–

David J. Burman:

They could have been any–

Stephen G. Breyer:

–Are… are you claiming that your answer to Justice Souter’s question is we will assume for purposes of this case… we’re not admitting whether it’s true or not, but we’re going to assume we’re not spies–

David J. Burman:

–We believe–

Stephen G. Breyer:

–because we win even if we’re not spies because we are essential persons?

David J. Burman:

–If we had made the Totten mistake of suing in our own name, we would be out of court, but we have sued as Does and we have said we are satisfied with the CIA concluding internally whether we are entitled to PL-110 status.

Stephen G. Breyer:

All right, but my guess is… well, he’s pushed you and it sounds like it to me… that the only basis on which you could say you were an essential person is that you’re a spy.

David J. Burman:

We don’t–

Stephen G. Breyer:

He’s… he’s not a scientist.

He’s not a–

David J. Burman:

–Since they have not contested our PL-110 status until a somewhat desperate comment in the reply brief, we have never had to face this question because there has been no question that we are PL-110 resettlees, and that as long as we do not disclose our identity, which we’ve been careful not to do, unlike Totten, there is no state secret that is… is at risk.

Antonin Scalia:

But if the question comes up, you’re going to have to disclose the identity.

I mean, if… if it is controverted whether indeed you’re… you’re a spy or not, then what do you do?

Do you say, well, we’ll… we’ll do it in camera?

That’s right?

I mean, you… you think that… that a United States district court has all of these security facilities available as Langley?

I mean–

David J. Burman:

We–

Antonin Scalia:

–trust me, it doesn’t.

David J. Burman:

–We do not believe that we have to have… that we have to disclose anything to the district court to have standing as Does to seek a fair procedure within the CIA.

At the time of Totten, the idea of having a Doe being able to sue was not recognized for a plaintiff who wanted to protect his identity.

We have that now as of the last–

Stephen G. Breyer:

–Do we have to change Totten?

Because, look, what I’m now thinking is, A, if you’re suing on a contract, you win because you’re a spy, if you win.

If you’re suing on promissory estoppel, you win because you’re a spy, if you win.

If you’re suing on PL-110, you win because you’re a spy, and if you’re suing on due process, you win because you’re a spy.

So no matter what, you can’t win unless you’re a spy.

Stephen G. Breyer:

Now, they… they have Totten, and it… it… that sounds to me as if you’re there.

And do we have to overturn Totten for you to win?

David J. Burman:

–I do not believe so, but you should not expand Totten in the dramatic way the Government asks.

And it does not counsel for you to expand Totten when they cannot define a clear line as to where this jurisdictional, which they use in the brief but abandon here… they cannot explain to you why in Webster… they argued on pages 37 to 40 of their brief for exactly the same interpretation of Totten that they are arguing now.

They specifically said that it should not be up to the courts to look behind the scene of the privilege in Reynolds, and yet the Court rejected that position.

In Hamdi, they said there cannot be a secret proceeding with due process and the courts cannot review whether we’ve made that available, and the Court rejected that.

Things have changed since the time of Totten.

That does not require overruling Totten, but it certainly does not counsel expanding Totten in the dramatic way that the executive asserts, a way that basically says to the Court you have absolutely no role in determining whether our assertion that the state secret is an essential element here is in fact the case and whether it truly is a state secret.

We… if there’s anything we ought to be able to decide it’s what our case is about.

We may have loosely used bargain in the complaint, but the district court and the Ninth Circuit have now made it very clear that we cannot have a contract claim, we cannot have a due process, whether substantive or procedural, based upon a contract, we cannot have a promissory estoppel claim.

The Ninth Circuit has decided all of that against us.

What we still have, though, is a claim to a fair, internal agency procedure.

Ruth Bader Ginsburg:

Attached to what?

I mean, you can… a fair procedure leading nowhere is not a claim.

You have a right to a fair procedure because it’s attached to some substantive right.

David J. Burman:

That’s what we haven’t yet had the opportunity to prove as to what it is in these regulations.

But if you would look at… again, at the respondents’ appendix 72 to 74, the agency’s witness that they voluntarily made available, did not make any assertion of privilege, did not make any assertion that this was confidential asked, are there agency regulations that you know of that relate to the resettlement of these PL-110 people who are resettlees from foreign countries?

Are there regulations that deal with the determination of the level and extent of benefits to be given resettlees?

And are there agency regulations that deal with grievances by resettlees?

Yes.

We think no minimal due process allows them to tell us the wrong standard and not to give us notice and an opportunity to be heard in a confidential proceeding–

Anthony M. Kennedy:

What’s–

Ruth Bader Ginsburg:

You still have–

Anthony M. Kennedy:

–what’s your best case for that?

What’s your best case for that proposition?

David J. Burman:

–Well, certainly Matthews v. Eldridge.

Anthony M. Kennedy:

Because it sounds to me like due process in… in the air.

David J. Burman:

We don’t believe it is, Your Honor.

We… we don’t know for sure until we are entitled to litigate the regulation.

Anthony M. Kennedy:

No, no.

Anthony M. Kennedy:

We know enough at the summary judgment stage for us to… to decide whether the case can go forward or the dismissal stage.

David J. Burman:

Well, there has been no summary judgment–

Anthony M. Kennedy:

Or dismissal stage.

David J. Burman:

–At… at the dismissal stage, our pleadings have to be accepted as true, and we believe that the pleadings sufficiently assert that there are regulations there that create a… a property interest and that–

Ruth Bader Ginsburg:

–That create a property right?

David J. Burman:

–Yes.

Ruth Bader Ginsburg:

But the property right is the contract with the United States.

I mean, you can’t get away from the contract by calling it a property right.

David J. Burman:

We do not believe there is a contract and we do not believe we have to rely on it.

We were… the Does were coerced into what they did.

They do not seek compensation.

John Paul Stevens:

But what is your strongest case?

I don’t think Matthews addresses it.

What is your strongest case for the notion that you have a property interest even though you don’t have a contract?

David J. Burman:

Probably Perry v. Sindermann in the sense that there… it was clear that the contract was over but the Court indicated that–

Anthony M. Kennedy:

Well, that was the firing of a school teacher.

There was–

David J. Burman:

–It was a nonrenewal.

Anthony M. Kennedy:

–there was… there was an interest in having your job, contract property, and interest in getting back salary, contract property.

Not this case.

David J. Burman:

The… what the Court actually, I believe, focused on there and in Goldberg v. Kelly was the question of whether there were regulations–

Anthony M. Kennedy:

Goldberg v. Kelly, welfare benefits, money.

David J. Burman:

–We believe this is in a sense the equivalent of a welfare benefit.

Stephen G. Breyer:

Perry v. Sindermann.

Is that… that’s the nontenured teacher?

David J. Burman:

Yes.

Stephen G. Breyer:

There’s no property right there, I don’t think.

I’ve always taught that as a ground that it wasn’t compared to Roth where there was.

All right.

So… so… but there was a First Amendment interest of some kind.

David J. Burman:

And I believe the Court indicated that it would be possible if there were practices and policies that had been established that set substantive standards for continuing that there would be a property right in a fair procedure for determining that internally at the school.

Stephen G. Breyer:

You’re probably right if they have… I see what you’re saying.

David J. Burman:

We also believe there is a liberty interest.

These people came to the U.S. in danger.

The mere fact of labeling them essential to the United States and bringing them in in the PL-110 status, taking away their identity, giving them a false identity, false references, changing their occupations, all of those things we believe… we have an argument… created a liberty interest in continuation of the protection.

It’s the special relationship, the Dushane-type argument that the… that the Ninth Circuit relied on.

But I would hasten to add it is premature to determine whether we win on the merits, and the Government is absolutely wrong in their brief in suggesting that unless we can prove at this point that we can win on the merits, that we don’t have standing.

We have standing to make a claim for fair procedures.

Those procedures may include confirming internally to the CIA our identity and they may include confirming whether we satisfy whatever the need-based standard is that the CIA has identified.

We have made every possible effort to comply with the covenant that Totten imposed in a contract, a contract that we don’t believe we have.

We sued as Does.

We have sought preapproval of every single filing.

We had… counsel that learned any confidential information were precleared by the agency.

That is not what happened in Totten.

Those are procedures, as Justice Scalia has suggested, that did not… were not recognized at the time of Totten just like the due process claim was not recognized at the time of Totten.

And it is a claim that can be done internally to the CIA.

Anthony M. Kennedy:

You think that Totten would be decided differently today because of the… our due process jurisprudence?

David J. Burman:

We believe that Totten didn’t know to make a claim other than contract.

Anthony M. Kennedy:

I… that’s not my question.

David J. Burman:

Yes, we do.

Anthony M. Kennedy:

Suppose Mr. Totten is here today.

David J. Burman:

And if there were regulations in the Totten situation that created some sort of meaningful standard that would be applied by an internal procedure, which the record shows here the CIA has an internal procedure, not just regulations setting out the standard, but a review process.

We simply want to have a fair, internal procedure.

This case really is not about the protection of state secrets, but the limits of the executive authority to unilaterally assert without any review by the court–

Ruth Bader Ginsburg:

How would the court… a court go about monitoring this fair procedure–

David J. Burman:

–We… we don’t believe the court would have a role in monitoring the fair procedure.

It would simply determine whether the procedure that the CIA has described in the court record already satisfied minimum standards of… of due process.

If the court found that it did not–

Ruth Bader Ginsburg:

–And then you… you said that… suppose you knew what it was on paper and then you wanted to complain to a court, that’s not what they gave us.

They said that in their regulations, but they gave us something much less.

David J. Burman:

–It’s possible that the CIA would assert that there is some reason that it gave less than its regulations that would be a state secret.

It’s hard for us to imagine what that would be, but in fact that is open on remand for the… for the CIA to argue that.

Antonin Scalia:

Do these regulations just set forth a procedure or do they set forth some substantive entitlement?

David J. Burman:

They seem to do both.

They… we haven’t, of course, seen them in full yet, but they set forth a procedure and then they also say that there is some sort of need, age, indigency, and health-based standard for continuing the support.

And if you’ll notice–

Stephen G. Breyer:

Then it will be worse for them.

I mean, they say, look, frankly we’d rather reveal the names of one or two spies than we would like to reveal our procedures for dealing with the spies we bring into the United States.

It will take someone who reads those about 15 minutes with a computer to locate 400 resettled spies.

That will be a terrible disaster.

David J. Burman:

–If that was an external process, but we agree it should be internal to the CIA, that the process for applying that standard must remain internal to the CIA.

The Does share the interest in protecting their identity and the identities of others like them.

We… we believe that the Government–

Stephen G. Breyer:

What’s your answer?

What is your response?

David J. Burman:

–That there’s no external… there… there will be no public knowledge of that information, that they can explain their… they can apply their process internally, apply the need-based process internally, and that will not be litigated in the courts if they assert executive… or state secret privilege as to that, and we assume that they would at that point.

But we… we agree–

Antonin Scalia:

But the court would say you don’t have a cause of action unless it knows what… what these regulations say.

Surely the regulations have to be disclosed to the court at least.

David J. Burman:

–We… we believe that’s the case and they have not yet said that it would hinder the state secrets at all to disclose them, and they have disclosed quite a bit and said that the remainder they are holding back only a need-to-know basis.

They have not asserted any state secret privilege with the remaining regulations.

And we know, in fact, from the letter that is in the record from… between the CIA and the Justice Department in which the… there was basically an understanding that there would be regulations like this in order to make sure that these PL-110 resettlees did not effectively become wards otherwise on… on the Government and that the CIA would continue some responsibility for them.

The… we are not aware of any case in which this Court has suggested that there is an obligation of the district court to look behind the use of Doe and determine in a public manner the identity of the person.

That… the Government seems to assume that they have some entitlement to have a self-inflicted harm that they would demand that the identity of the Does be disclosed publicly and that they’re entitled to do that.

We do not believe that that’s a required part of the use of Does.

And in any event, we think it is somewhat similar to the criminal context where, if the Government is going to insist on moving forward in some way that is an affirmative defense like that, they may well have a responsibility for not being able to defend their position if they, at the same time, say that the state secret privilege applies.

But at this point, anyway, that has not been presented to the district court.

We… we find it strange that the Government so quickly now says, unlike what it argued in Webster, that there is this type of contract which is not subject to the jurisdictional bar, and that is a contract with their own employees when they tell us that those same employees are going to know a much broader swath, as Mr. Clement said, of secrets.

If their rationale made sense as something that was so compelling that the Court should create a jurisdictional bar for what the courts would otherwise have the capacity and the competence to do, you would think it would apply in that situation as well.

But the fact is they lost Webster, and so they have to try to say that there is something still very broad about Totten but explain away Webster, and they simply cannot convincingly do that.

David J. Burman:

Webster was the same argument by them.

Reynolds was the same argument by them, and they lost.

John Paul Stevens:

May… may I ask you what is probably a stupid question?

Why isn’t the contract barred by the statute of frauds?

David J. Burman:

Well, we haven’t thought about that because we haven’t proceeded on… on the contract.

There may well… we… it probably is.

John Paul Stevens:

Yes.

David J. Burman:

And there… we… we… but we do not proceed on the contract.

The Does, in fact, do not underestimate the risks of disclosure of their identities and of their relationship with the CIA.

Perhaps they put too much into the complaint describing at some length what they did, but the reason for that, I suggest, is understandable.

It was subject to preapproval by the agency.

Why not put the equities in there even though they’re not essential elements of your claim and see if the agency approves them?

The agency approved them.

We should not be thrown out of court because we put into the complaint allegations which the agency admits using the Doe, do not threaten any secrets, and which are not part of the essential elements of our claim.

Antonin Scalia:

Are all of these what you call 110 resettlees… are they all CIA resettlees?

David J. Burman:

It does not appear that they are.

Antonin Scalia:

Some of them State Department and–

David J. Burman:

At… at least… my understanding is at least the FBI and perhaps the Commissioner of INS at the time for… perhaps at the request of other agencies.

It appears that all three agencies had the ability to create this exception to the normal immigration procedure.

If the Does can show on remand that the CIA’s regulations are as they allege and that PL-110 status generally, which is what the CIA witness McNair basically said, that many PL-110 resettlees are in continued danger because of the nature of which we brought them in, regardless of what they did before we decided to bring them in, or if they can show that in their particular situation there is a… a special relationship of danger created, we believe we would have a substantive due process argument and a procedural due process argument.

That is not today’s question.

The Government has agreed that for purposes of today’s question, it should be assumed that we can make out a due process claim.

That claim is–

Anthony M. Kennedy:

I’m not quite sure where the Government has said that.

You talk about footnote 2.

All it said was that they’re not appealing the point that you have to go to the Court of Claims.

David J. Burman:

–And also in footnote 1 in the… in their brief on the merits to this Court.

I think it’s on page 7.

My reading of that is that they are not challenging the due process analysis, and it would be premature to challenge the due process analysis at this time, which is what the Court said in Webster.

We believe that our due process argument is stronger than the due process argument that was made in Webster, but the Court in any event said that’s not what is… what is before us at this time.

David J. Burman:

And… and we believe that that’s the same situation now.

John Paul Stevens:

Do you agree–

Antonin Scalia:

–I’m just wondering what–

John Paul Stevens:

–Excuse me.

Do you agree your due process argument does depend on having either a property interest or a liberty interest?

David J. Burman:

Yes.

Antonin Scalia:

–I’m just wondering what’s, you know, some foreign… I don’t know who… who the Does spied on, but let’s assume… you say they’re in danger.

Somebody may be interested in… in the subject.

What kind of security provisions do you have in your law office that would… that would make them immune from the kind of intrusion that foreign espionage services–

David J. Burman:

In… in general, we have not been allowed to take information outside of the agency.

Even when the clear–

Antonin Scalia:

–I’m not talking about the agency.

Just about the name of your clients.

I think it’s… there are countries interested in… in, you know, who was spying on them.

David J. Burman:

–That was their decision to trust us with that, and ironically under the Government’s theory of this case, the Does–

Antonin Scalia:

Well, but it may lead… it may lead to other agents and… and one of the problems about allowing suits like this is that this information about who the agents are will be brought to a lawyer, kept in his law office, and much more readily accessible to… to foreign powers than… than it would be at Langley.

David J. Burman:

–And under the agency’s theory of this case, there is nothing that stops the Does from making their identities public because there is no enforceable contract that the agency can enforce.

The agency wants to keep Snepp.

It wants to live with Webster, and the only thing it has left is to somehow carve out a rule that applies to these people who have done everything they possibly could, including not telling me who they are.

Our files within our office do not identify them in writing, is my understanding, by name.

I certainly am not aware of who they are.

I know what’s alleged in the complaint and nothing more than that.

But certainly the risk of gray mail, the risk of the Does… people in the Does’ position disclosing something is totally irrelevant to the question of whether Totten creates some sort of bar that applies not just to a contract claim but to a claim where there is no contract, where it is not alleged that it is based upon a contract, and where the parties have done everything possible… the Does, the plaintiffs, have done everything possible to honor the confidences that the Government wants to keep.

Thank you, Your Honors.

John Paul Stevens:

Thank you, Mr. Burman.

Mr. Clement, you have about 4 and a half minutes if you need them.

Paul D. Clement:

Justice Stevens, just a few points.

And may it please the Court, just a few points in rebuttal.

First of all, as I think Justice Kennedy’s question indicated, there was no waiver of any due process argument.

If you look at those footnotes, the only thing that’s waived is the Tucker Act concern that we talked about earlier.

Paul D. Clement:

Second of all, I think in thinking about this PL-110 claim, it’s important to acknowledge, as I think Justice Scalia was suggesting, that it is the PL-110 claim to the CIA.

And as I understand their argument, it depends on their being a significant difference between coming into court and saying I’m an unacknowledged spy and I’d like to sue the CIA and coming into court and saying I am an unacknowledged PL-110 resettlee with a claim against the CIA, please hear my claim.

I would say there’s no material difference in terms of all of the policies that undergird the Totten doctrine between those two.

And I would note that even the Ninth Circuit recognized at 35a and 37a of the petition appendix that the respondents would have to establish a relationship with the agency.

The final two points I would make is, first of all, they would like to make some benefit of the fact that they are suing as Does as opposed to the Totten case.

I would make two points about that.

First of all, presumably the reason that William Lloyd could use his name in the Totten case is because it was a suit by his estate and he was deceased, so he didn’t have a concern about retaliation.

[Laughter]

I would also say that the difference between suing under Doe and suing under your name just makes clear that both sides to this litigation start with the premise that the fundamental fact of this litigation turns on a secret.

They don’t want their name revealed any more than we want the name revealed, and that just underscores how this is all about a secret, just as in Totten.

The last point I would make is they asked you to take their pleadings as a given at this stage in the litigation, and I would ask you to look at those pleadings.

The complaint is replete with references to the espionage relationship, and the complaint itself cites Totten or the Totten doctrine no less than seven times.

I would suggest that if this claim is not Totten-barred, then no claim is.

With that, I’d ask the court below be reversed.

John Paul Stevens:

Thank you.

The case is submitted.