Justices to Hear Case on Secrets and Spies

WASHINGTON — It was enough to make the CIA salivate. At the height of the Cold War, a senior diplomat from a Soviet bloc country approached a U.S. Embassy official and said he and his wife wanted to defect to America.

Instead, the CIA swooped in and offered a deal: Stay in place, spy for us, and when the time comes we'll set you up for life in the United States.

The couple kept their end of the bargain but said the CIA did not. And nearly two decades after the agency helped them relocate to Seattle -- providing financial support for several years but refusing to resume payments when the husband lost his job -- the former spies are pursuing a very American remedy. They want to take the CIA to court.

In most lines of work, that wouldn't be a problem. But the spy world has rules all its own. Doctrine that dates from the Civil War has barred suits over disputes between the government and its spies. The reasoning is simple: Clandestine contracts are supposed to remain clandestine.

But to the dismay of the CIA, the couple have won important rounds in their legal fight, including a 2003 victory in the 9th U.S. Circuit Court of Appeals in San Francisco. The final round is set to open Tuesday, when the U.S. Supreme Court hears oral arguments.

The high court is not weighing the merits of the couple's claims, but rather the question of whether such a lawsuit should be allowed to proceed.

CIA officials fear a loss in the Supreme Court could open the way to an avalanche of suits by former spies seeking to cut better deals. If that were to happen, current and former officials said, it is all but inevitable that secrets would spill out. Undercover operatives' identities, assignments and methods could be exposed.

Even if the plaintiffs who bring the suits are safe in the United States, exposing even minor details of their service as spies could place others at risk, officials said. It could help their home countries figure out how they were recruited, what they revealed and whether others were involved.

"What it puts at risk is the whole manner in which the CIA deals with its spies," said Jeffrey H. Smith, former general counsel at the CIA, who has no direct connection to the case. "These are issues in the shadows that just can never be litigated."

The agency has always felt a "moral obligation to the people who spy for us," Smith said. "But I'm not aware of any obligation, legal or moral, that says when we bring someone into the United States they become a perpetual ward of the state."