1997 Army Law. 9 (1997)
Spycraft and Government Contracts: A Defense of Totten v. United States

handle is hein.journals/armylaw1997 and id is 654 raw text is: Spycraft and Government Contracts:
a Defense of Totten v. United States
Major Kelly D. Wheaton
Litigation Attorney
General Litigation Branch
Litigation Division
U.S. Army Legal Services Agency

Introduction
William A. Lloyd stood before his president, who was a tall,
lanky man with piercing eyes, a craggy brow, and a strong,
prominent chin. After his death, the president's country would
come to see him as one of the greatest leaders in its history. The
two men were discussing the beginning of a civil war that had
riven their country, brother fighting brother, son fighting father,
and which would, over the next four years, bathe the country in
blood and fire. The President, Abraham Lincoln, was request-
ing that Lloyd travel south and gather information on the seced-
ing confederacy. He was to proceed south and ascertain the
number of troops stationed at different points in the insurrec-
tionary States, procure plans of forts and fortifications, and gain
such other information as might be beneficial to the Govern-
ment of the United States .... .  Finally, President Lincoln
made an offer of payment, which Lloyd accepted. Lloyd was
not to see the President again.
The President and Lloyd's discussion eventually resulted in
the United States Supreme Court case of Totten, Administrator
v. United States.2 Totten held that United States courts lack
jurisdiction to hear complaints against the United States
brought by parties who allege to have entered into contracts for
secret services with the United States. In June, 1996, Time
magazine discussed this venerable case in reporting on the sit-
uation of former Vietnamese commandos. The article stated
that the Central Intelligence Agency (CIA), in responding to the
allegations of commandos, cited an 1875 Supreme Court case
that it has used successfully to fend off past suits by agents who
1. Totten, Administrator v. United States, 92 U.S. 105 (1875).
2. Jd.
3. Douglas Waller, Victims of Vietnam Lies, TIME, June 24, 1996, at 44.

claimed to have been cheated.3 How does a case decided in
1875 merit the attention of Time today?
This article discusses Totten and its progeny, including the
recent case of Vu Doc Guong v. United States.4 It also analyzes
the continuing impact of Totten in the murky world of covert
operations, using the recent case of the Vietnamese Lost Com-
mandos as a point of focus.
The Interesting Case of Mr. Totten
Mr. Enoch Totten brought action in the United States Court
of Claims5 to recover monies due as the result of the services of
his intestate, Mr. Lloyd. The Court of Claims found that Mr.
Lloyd proceeded, under the contract [with the President],
within the rebel lines, and remained there during the entire
period of the war, collecting, and from time to time transmit-
ting, information to the President; and that, upon the close of
the war, he was only reimbursed his expenses.6 The Court of
Claims dismissed Mr. Totten's complaint, finding that the Pres-
ident lacked authority to enter into such a contract.7
The Supreme Court held that the President had authority to
employ Mr. Lloyd to spy on the enemies of the United States.
The Court also stated that under a contract to compensate such
an agent it was lawful for the President to direct payment to Mr.
Lloyd of the amount stipulated. The Court then stated, how-
ever:
Our objection is not to the contract, but to the
action upon it in the Court of Claims. The

4. 860 F.2d 1063 (Fed. Cir. 1988), cert. denied, 490 U.S. 1023 (1989).
5. The Court of Claims was renamed the United States Claims Court by the Federal Courts Improvement Act of 1982, Pub. L. No. 97-164, 96 Star. 25 (1982). The
Claims Court was subsequently renamed the United States Court of Federal Claims by the Federal Courts Administration Act of 1992, Pub. L. No. 102-572, § 902,
106 Star. 4506, 4516 (1992).
6. Totten, 92 U.S. at106.
7. Jd.
8. Jd.

AUGUST 1997 THE ARMY LAWYER • DA-PAM 27-50-297

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