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"be a breach of a contract of that kind, and thus defeat a recovery. Totten, at 107."

The Supreme Court reaffirmed Totten in Tenet v. Doe, (2005). In Tenet, the plaintiffs, who were former Cold War spies, brought estoppel and due process claims against the United States and the Director of the Central Intelligence Agency (hereinafter "CIA") for the CIA's alleged failure to provide them with the assistance it had allegedly promised in return for their espionage services. Tenet, 544 U.S. at 3. Relying heavily on Totten, the Court held that the plaintiffs claims were barred. Delivering the opinion for a unanimous Court, Chief Justice Rehnquist wrote: "We adhere to Totten. The state secrets privilege and the more frequent use of in camera judicial proceedings simply cannot provide the absolute protection we found necessary in enunciating the Totten rule. The possibility that a suit may proceed and an espionage relationship may be revealed, if the state secrets privilege is found not to apply, is unacceptable: "Even a small chance that some court will order disclosure of a source's identity could well impair intelligence gathering and cause sources to 'close up like a clam.'" (citations omitted). Tenet, 544 U.S. at 11."

The second line of cases deals with the exclusion of evidence because of the state secrets privilege. In United States v. Reynolds,, the plaintiffs were the widows of three civilians who died in the crash of a B-29 aircraft. Id. at 3-4. The plaintiffs brought suit under the Tort Claims Act and sought the production of the Air Force's official accident investigation report and the statements of the three surviving crew members. Id. The Government asserted the states secret privilege to resist the discovery of this information, because the aircraft in question and those aboard were engaged in a highly secret mission of the Air Force. Id. at 4. In discussing the state secrets privilege and its application, Chief Justice Vinson stated: "The privilege belongs to the Government and must be asserted by it;"

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