A couple of spies have sued the CIA.
The CIA doesn't wish to be sued.
The beef has hit the Supremes.
For the very spooky low-down on what was really going on, see the estimable Dahlia Lithwick's account in Slate. Don't fail to check out the Civil War era Totten v. U.S. case that sets the precedent for not being allowed to sue spy masters for breaking their promises. That's what spy agencies do...
Mr. Totten sued President Lincoln. Or rather the government, Lincoln having been assassinated. Honest Abe was running spies into the South. The man was deep, functioning on so many levels. If you read some of the things he said, the man was a genius, far smarter than his principal adversaries and underlings..
Spy agencies have to break promises. They're in the business of setting people up. Haven't you ever heard of the old double-cross? And double double-cross? And triple-cross?
How can you sue the Spy-master for carrying out the deadly game we pay him to carry out in the first place?
So what if he double-crosses the good guys once in awhile.
Maybe they weren't so good?
Maybe they were playing both sides against the middle.
Are we going to let a guy sue "M" and then take discovery about what the Agency knew and when it knew it?
I don't think so.
I've read far too many James Bond books in my yoot.'
Spies live in a world of their own, and when they get burned, they either had it coming or took the risk of being let dangle, slowly, slowly, in the wind.
Suing the CIA, taking discovery...
Now there's a laff...you wouldn't know what you got when they gave it to you.
You barely know what you've got when an opposing law firm gives it to you. They all think they're the CIA... They'll give you what they think you think they have for sure, and nothing else.
And then there's what a prosecutor will give you by way of discovery. Some will open their file. But not their file cabinet. Nor the police file cabinet. Nor what the cop didn't file.
I once had a prosecutor, who I put on the stand under oath, admit that he didn't provide certain discovery in a murder case. Why? Because the report didn't pertain to the murder case. It pertained to the book he was writing about the murder case. So when he swore he'd given me all the discovery, he had a mental reservation and intent to evade (lie, as in prevaricate) about the stuff he stuck in the file cab in his bedroom. That was no longer discovery. It was his book. His retirement plan.
Slipperiest prosecutor I ever met, by far. That was only one of his little tricks. He slipped a tape recorder into a waste-basket and covered it with a piece of paper while having a discussion with another defense attorney who came in to negotiate in good faith for a deal for his client in the same murder case.
The cops turned this DA in to his boss, who turned the tape over to the defense attorney with an apology. Imagine a prosecutor too shady for the cops!
I replaced that attorney. I sought the tape. The defense attorney had given it to a prosecutor friend to copy, up in the Homicide Detail, which accidentally taped over the tape with a statement from some other case. These are the things that make you want to tear your hair out...
Your Mission, should you choose to accept it, is to deduce the constitutional principles at stake here.
No reading any old James Bond thrillers, or viewing old Sean Connery movies.
***
3/2/05
Guess who loses.
The spies who sued the CIA lose, in Tenet v. Doe, 03-1395.