Tenet v. Doe

PETITIONER:George J. Tenet, Individually, Porter J. Goss, Director of Central Intelligence and Director of the Central Intelligence Agency, and United States
RESPONDENT:John Doe, et ux.
LOCATION:Texas State Capitol

DOCKET NO.: 03-1395
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 544 US 1 (2005)
GRANTED: Jun 28, 2004
ARGUED: Jan 11, 2005
DECIDED: Mar 02, 2005

David J. Burman – argued the cause for Respondents
Paul D. Clement – argued the cause for Petitioners

Facts of the case

Jane and John Doe said they performed espionage activities abroad for the United States. The Does sued the CIA in federal district court for not paying financial support allegedly promised to the Does and for allegedly violating the Does’ due process rights. The CIA argued the U.S. Supreme Court’s decision inTotten v. U.S. (1875) prohibited the district court from hearing the case. In Totten the Court dismissed a spy’s claim against the government for damages for breach of contract. Both the district court and the Ninth Circuit Court of Appeals ruled Totten did not prevent the district court from hearing the Does’ case. The courts reasoned that the Does’ case, unlike Totten’s, was mainly about the denial of due process rights. The Ninth Circuit said the CIA could prohibit the district court from hearing the Does’ case only if the CIA could show that state secrets would be in jeopardy were the case to proceed. The Ninth Circuit sent the case back to the district court for that court to determine the CIA’s potential state secrets claim.


DoesTotten v. U.S. prevent a district court from considering Jane and John Does’ due process and tort claims that the CIA refused to keep its alleged promise to provide them with life-time financial assistance in exchange for their alleged espionage services to the CIA?

Media for Tenet v. Doe

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

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

John Paul Stevens:

I have an opinion to announce it was authored by the Chief Justice.

The case is Tenet against Doe.

Respondent husband and wife claimed to spied on behalf of the United States during the Cold War and they alleged that the CIA promised in return to provide them with assistance for life.

Asserting that the CIA failed to carry out its end of the bargain respondents filed suit in Federal Court against the United States and the Director of the CIA seeking to require the CIA to give them assistance and to provide an internal review process that accords with a due process.

The Court of Appeals for the Ninth Circuit found that their claims based on due process and the estoppel theories could proceed to trial.

We granted certiorari and now reverse.

More than a century ago in Totten against the United States we held that the executor of a self-styled Civil War spy could not sue the United States to enforce his obligations under a secret espionage agreement.

We held that the very essence of such an agreement was such that it was secret and had to remain so.

We thought it entirely incompatible with the secret nature of such a contract that a former spy could bring suit to enforcer.

Totten plainly bars respondents’ suit.

Totten did not merely prohibit breach of contract claims brought by former spies to enforce secret contracts.

Leaving open the possibility for individuals to bring claims under alternative theories such as estoppel or due process, Totten more sweepingly forbid the maintenance of any claim such as respondents’ where success depends upon the existence of their secret espionage relationship with the government.

The Court of Appeals also was wrong to hold that Totten has been recast simply as an expression of the evidentiary states secret privilege rather than a categorical bar to respondents’ claims.

Although we have looked the Totten in developing that privilege, none of our cases has signaled to retreat from Totten’s holding that lawsuit premise on alleged espionage agreement are all together forbidden.

Today we adhere to Totten, the states secrets privilege in the more frequent use of in camera judicial proceeding simply cannot provide the absolute protection we found necessary in enunciating the Totten rule.

The possibility that an espionage relationship maybe revealed if a suit proceeds is unacceptable and requiring the government to invoke the privilege on a case by case basis risks the perception that is confirming or denying relationships with individual plaintiffs.

Enforcing the government to litigate these claims could expose the government to lawsuits brought just to induce the CIA to settle the case in order to avoid revealing classified information.

The judgment of the Court of Appeals is therefore reversed.

The opinion of the Court authored by the Chief Justice is unanimous.

I have filed a concurring opinion in which Justice Ginsburg join; Justice Scalia has also filed a concurring opinion.