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Justices hear spy drama

Was John Doe in the building?

As the Supreme Court heard arguments Tuesday in an unusual case involving a former spy, no one knew if the secret agent was in the audience.

Was he the balding man near the front? What about the gray-haired woman sitting nearby? Was that Mrs. Doe?

The secrecy about Tenet vs. Doe created some odd moments as the case was discussed in an open forum by the nation's highest court.

The couple is using the alias so they can't be identified, but otherwise Case No. 03-1395 is being treated as an ordinary case.

Doe's lawsuit says he is a former diplomat from a communist country who became a spy for the United States. The CIA moved him to the U.S. and helped him find a job. But he contends that, after he was laid off in 1997, the government reneged on its promise to provide a lifetime "safety net."

The CIA says Doe has no right to bring a suit because the very existence of the case would jeopardize national security. The agency says the suit is prohibited by an 1875 Supreme Court ruling involving a man hired by President Abraham Lincoln to spy on the Confederacy. "When you enter an espionage contract, you recognize you have no recourse under the law," Paul Clement, an attorney for the CIA, told the court.

During Tuesday's arguments, there were a few moments reminiscent of Get Smart, the old spy TV show.

When the justices asked questions that assumed Doe was a spy, David Burman, Doe's attorney, kept insisting he might not be _ even though Doe's original lawsuit said he was. Burman's responses appeared to annoy some of the justices because their questions were derailed.

Burman told the court his clients may have revealed too much in their suit, but he noted that the CIA had approved all filings.

Justice Antonin Scalia questioned whether a law firm or a federal court could protect the Does' identity as well as the CIA, which has a well-guarded compound in Langley, Va.

"You think a U.S. District Court has all the security of Langley? It doesn't," Scalia said.

But Burman said his Seattle law firm had gone to great lengths to make sure the couple could not be identified. "Our files in our office do not identify them," he said.

After the argument, Burman indicated he had never seen the Does. Asked outside the court if his client attended the argument, Burman said, "I have no idea."