Second-Guessing the Spymasters with a Judicial Role in Espionage Deals
56 Pages Posted: 20 Jan 2006
There are heaps of spy novels and piles of memoirs and histories about espionage, but very few discussions of how American law applies to secret deals for secret services. This article adds that interesting third strand.
The purpose of this article is to analyze what role, if any, American courts should play in resolving financial disputes between spymasters and their secret agents. While espionage may be an esoteric area for the law, some disputes about espionage contracts have made their way into the courts. Some cases have been summarily dismissed in the lower courts while others have made it farther along the process. And just recently, the Supreme Court in the Tenet v. Doe case decided to be heard again on this topic. In Part II of this article, I suggest a framework for analyzing espionage disputes under American law. To do so, I explore the trade-off between individual liberty and group security and assess the need for judicial deference to the executive branch, common themes in national security studies. While I believe that espionage contracts are by themselves worthy of such analysis, my separation of powers framework could be used to review other areas of national security law. In Part III, in a historical survey of cases, I assess some arguments for and against judicial enforcement of espionage contracts, leading up to the Tenet v. Doe decision. In Part IV, I determine how an espionage dispute would be treated under three different strands or keys in national security law. This part leads to the analysis of the Supreme Court's recent decision in Tenet v. Doe. In Part V, in conclusion, I suggest some opportunities which the Supreme Court and Congress have missed for bridging gaps and harmonizing the law in this area.
Keywords: Espionage, Intelligence, National Security, Separation of Powers, Spymasters, Terrorism
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