dissenting:
It is the prerogative of the Supreme Court, not ours, to decide whether Totten v. United States, 92 U.S. 105, 23 L.Ed. 605 (1875), continues to bar judicial review of actions arising from espionage services performed for the United States by secret agents, or whether the Totten doctrine has somehow been supplanted by the modern *1156state secrets evidentiary privilege articulated in United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953). My colleagues proclaim that Totten is “applicable to the case before us only as applied through the prism of current state secrets doctrine.” Maj. Op. at 1151. But Totten holds that claims brought by secret agents against the government are non-justiciable. Reynolds, on the other hand, protects against the unveiling of state secrets during the prosecution of an otherwise recognized cause of action. Far from modifying Totten, the Court’s opinion in Reynolds reaffirms Totten’s jurisdictional bar.
Furthermore, the majority fails to recognize the jurisdictional limitation imposed on the Does’ lawsuit by the Tucker Act, which requires that this suit be brought in the Court of Federal Claims. Because the court’s opinion is contrary to the clear rule announced in Totten, and ignores the limitations on our jurisdiction imposed by the Tucker Act, I respectfully dissent.
I
In Totten, the estate of William A. Lloyd, a spy hired by President Abraham Lincoln to gain information on Confederate troop positions during the Civil War, sought to recover in the Court of Claims compensation Lloyd had allegedly been promised under his secret agreement with the President. 92 U.S. at 105-06. The Supreme Court upheld the lower court’s dismissal of the suit, concluding that the very nature of the contract foreclosed a suit for its enforcement. Id. at 107. In language directly applicable to the Does, the Court explained why such cases are not justiciable:
The service stipulated by the contract was a secret service; the information sought was to be obtained clandestinely, and was to be communicated privately; the employment and the service were to be equally concealed. Both employer and agent must have understood that the lips of the other were to be for ever sealed respecting the relation of either to the matter. This condition of the engagement was implied from the nature of the employment, and is implied in all secret employments of the government in time of war, or upon matters affecting our foreign relations, where a disclosure of the service might compromise or embarrass our government in its public duties, or endanger the person or injure the character of the agent. If upon contracts of such a nature an action against the government could be maintained ... whenever an agent should deem himself entitled to greater or different compensation than that awarded to him, the whole service in any case, and the manner of its discharge, with the details of dealings with individuals and officers, might be exposed, to the serious detriment of the public.
Id. at 106-07.
The rule in Totten is not limited to breach of contract claims brought by those providing secret services to the government. Expanding its holding beyond the contract analysis, the Totten Court reasoned that “general principle[s][of] public policy forbid[ ] the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated.” Id. at 107 (emphasis added). Implicit in the Court’s public policy holding is an understanding that fundamental principles of separation of powers prohibit judicial review of secret contracts entered into by the Executive Branch in its role as guardian of national security. See id. at 106 (discussing the President’s powers as Commander in Chief); see also Dept. of the Navy v. Egan, 484 U.S. 518, 527, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988) (stating *1157that the authority to protect national security information falls to the President as Commander-in-Chief of the armed services and head of the Executive Branch of government.).
There is a key distinction between spy cases like Totten and other classes of cases where Congress has provided an express remedy for relief. In the latter, the evi-dentiary privilege known as “state secrets” may properly be invoked to block otherwise relevant discovery in a recognized cause of action. An example is United States v. Reynolds. In Reynolds, the Supreme Court considered — in the context of a tort claim discovery dispute — the protection afforded to discovery of evidence that would reveal state secrets. Id. at 3, 73 S.Ct. 528 (noting that “an important question of the Government’s privilege to resist discovery [was] involved”).
Reynolds arose from the unfortunate crash of a military plane while it was testing secret electronic equipment. Id. at 2-3, 73 S.Ct. 528. The plaintiffs were three widows of civilian observers aboard the plane who died in the crash. Id. at 3, 73 S.Ct. 528. In an attempt to obtain discovery in support of their claim against the government under the Federal Tort Claims Act (“FTCA”),1 the plaintiffs moved pursuant to Rule 34 of the Federal Rules of Civil Procedure for production of the Air Force accident investigation report and the statements of the three surviving crew members taken in connection with that investigation. Id. The government moved to quash, claiming that Air Force regulations rendered the information privileged against disclosure. Id. at 3-4, 73 S.Ct. 528.
The district court rejected the government’s claim, finding that the enactment of the FTCA waived the claimed privilege. Id. at 4, 73 S.Ct. 528. After the district court had already rendered its decision, it received a letter from the Secretary of the Air Force stating that the release of the information would “not be in the public interest.” Id. The district court reheard the matter, after which the Secretary of the Air Force filed a formal claim of privilege asserting that the aircraft and its personnel were engaged in a secret mission at the time of the crash. Id. Because of the secret nature of the mission, the government refused to produce the requested documents. Id. at 5, 73 S.Ct. 528. The court, unable to determine whether the documents contained privileged matter, directed that the issue of negligence be decided in the plaintiffs’ favor. Id. The government appealed and the court of appeals affirmed. Id.
On certiorari, the Supreme Court viewed Reynolds as presenting “an important question of the Government’s privilege to resist discovery.” Id. at 3, 73 S.Ct. 528 (emphasis added). The Court made clear that the “essential question” in Reynolds was whether the Government asserted a valid claim of privilege releasing it of its obligation to produce documents otherwise discoverable under Federal Rule of Civil Procedure 34. Id. at 6, 73 S.Ct. 528. The Court held that before the government can withhold relevant evidence under the state secrets privilege, it must first file a “formal claim of privilege, lodged by the head of the department which has control over the matter”2 and there must be a judicial determination that “the circum*1158stances are appropriate for the claim.” Id. at 7-8, 73 S.Ct. 528.
Contrary to the majority’s reasoning, Reynolds did not alter the long-standing rule announced in Totten barring judicial review where the very subject matter of the suit is a state secret. The Supreme Court’s opinion in Reynolds refers to Tot-ten only twice. The most important reference occurs at footnote 26 where the Court expressly distinguished the Totten-type of case from the situation presented in Reynolds. There, the Court acknowledged that Totten is a different kind of case, one “where the very subject matter of the action, a contract to perform espionage, was a matter of state secret.” Reynolds, 345 U.S. at 11 n. 26, 73 S.Ct. 528. For Totten cases, the Court observed that “[t]he action [is] dismissed on the pleadings without ever reaching the question of evidence ....” Id. (emphasis added).
The only other reference Reynolds makes to Totten is found at footnote 11. There, the Court cited Totten for the proposition that public policy supports the invocation of evidentiary privileges to exclude evidence in instances where the law regards matters to be confidential. Id. at 7 n. 11, 73 S.Ct. 528. Footnote 11 does not suggest that the Totten doctrine has somehow evolved from a jurisdictional bar into an evidentiary rule of privilege, as the majority reasons. Rather, Totten expressly acknowledges that there is a higher need to protect the disclosure of a contract for secret services with the government where the very existence of the arrangement is itself the secret not to be disclosed. Totten, 92 U.S. at 107.
While Totten and Reynolds are closely related in that both protect a state secret from disclosure, the rules announced in those cases differ in subtle but important respects. Most importantly, the state secrets privilege in Reynolds permits the government to withhold otherwise relevant discovery from a recognized cause of action (e.g., an FTCA case), while the Totten doctrine permits the dismissal of a lawsuit because it is non-justiciable before such evidentiary questions are ever reached.
Our holding in Kasza v. Browner, 133 F.3d 1159 (9th Cir.1998), supports this conclusion. Kasza involved a recognized cause of action under the Resource Conservation and Recovery Act of 1976 (“RCRA”), 42 U.S.C. § 6972. The appeal was consolidated from two closely related cases, one against the Environmental Protection Agency, and the other against the Air Force, seeking to compel compliance with hazardous waste inventory, inspection, and disclosure responsibilities at a secret installation in Nevada. Kasza, 133 F.3d at 1162. During the discovery phase of the litigation, the Air Force refused to furnish almost all of the information sought by the plaintiffs, claiming it was privileged because enemies of the United States could determine what secret activities the Air Force was conducting if information associated with the operation was disclosed. Id. at 1163. The district court granted summary judgment in favor of the Air Force, finding that the formal invocation of the state secrets privilege blocked the discovery requested and made trial impossible by effectively preventing the plaintiffs from establishing a prima facie case for any of their claims. Id. at 1162-63.3 We affirmed. Id. at 1163.
In Kasza, we relied on the Reynolds rule that “the state secrets privilege is a common law evidentiary privilege that allows the government to deny discovery of military secrets.” Id. at 1165. After reviewing the applicable law, we reasoned that the application of the state secrets privilege can have different effects, de*1159pending on whether it is used to exclude evidence or to dismiss a cause of action. Id. at 1166. First, we found that the government’s invocation of the privilege over particular evidence may completely remove the evidence from the case. Id. If a plaintiff cannot make out her prima facie case without the secret evidence, the court may dismiss her claim. Id. Second, the privilege may deprive a defendant of information that would otherwise give the defendant a valid defense to the claim. Id. In these cases, the court may grant summary judgment to the defendant. Id.
In the first two categories, before the state secrets privilege can be applied in an otherwise justiciable case, there must be a formal claim of privilege followed by judicial review to determine whether the circumstances are appropriate for its invocation. Id. at 1165-66. After the court has decided what evidence is unavailable as a result of the application of the privilege, the court must determine whether the plaintiff is still able to establish a prima facie case or whether the defendant can prove up a defense in light of the court’s exclusionary ruling. Id. at 1166. In Kas-za, we found that the plaintiffs’ RCRA claims could not be proven without the documents withheld as privileged, and therefore summary judgment was appropriate. Id. at 1170 (“[T]he state secrets privilege bar[s] [the plaintiffs] from establishing [a] prima facie case_”).
Finally, we addressed the third category of cases where the “very subject matter of the action” is a state secret. Id. at 1166. We found that in these cases there is no need to evaluate a plaintiffs ability to produce nonprivileged evidence. Instead, “the court should dismiss [a] plaintiffs action based solely on the invocation of the state secrets privilege.” Id.
The third category recognized in Kasza is controlled by Totten. In defining this category of cases, we cited Reynolds’s footnote 26, where, as discussed above, the Supreme Court expressly distinguished the Totten-type cases from other cases involving the state secrets privilege. Kas-za, 133 F.3d at 1166. We also cited Tot-ten’s broader public policy holding. Id. We recognized that this category includes those cases where the subject matter of the suit is itself a state secret requiring dismissal. Id. In these cases, as soon as it becomes obvious to the court that the action is simply not justiciable, the case is dismissed. Dismissal can occur even before the court resolves evidentiary issues or discovery disputes implicating the plaintiffs ability to establish a prima facie case. Reynolds, 345 U.S. at 11 n. 26, 73 S.Ct. 528; Kasza, 133 F.3d at 1166 (citing Tot-ten, 92 U.S. at 107); see also In re United States, 872 F.2d 472, 478 (D.C.Cir.1989) (noting with approval the district court’s order distinguishing cases where the subject matter of the litigation is a state secret from those where the discovery requested is the state secret).
We concluded that the plaintiffs’ discovery in Kasza was not only barred by the state secrets privilege, which prevented them from establishing their prima facie case justifying dismissal, but also that the plaintiffs’ claims fell into the third category of cases represented by Totten because the Air Force could neither “confirm or disprove that any hazardous waste had been generated, stored, or disposed of at the operating location.” Kasza, 133 F.3d at 1163, 1170.
The majority stretches the court’s holding in Kasza beyond its logical bounds to find that “[i]t is therefore the law of this circuit that Totten permits dismissal of cases in which it is asserted that the very subject is a state secret only after complying with the formalities and court investigation requirements that have developed since Totten within the framework of the *1160state secrets doctrine.” Maj. Op. at 1150 (emphasis in original).
Kasza neither announced nor applied such a rule. While the Kasza court chose to rule on the Totten issue after it ruled on the state secrets privilege, nothing in Kas-za suggests that judicial review of Totten-type claims is mandated. Instead, the Kasza court specifically identified the Tot-ten-type of cases as a separate type of case where dismissal may be appropriate on the pleadings. Kasza makes clear that in the third category of cases “the court should dismiss the plaintiffs action based solely on the invocation of the state secrets privilege” without the judicial balancing required in the discovery-type cases. Kasza, 133 F.3d at 1166. Kasza’s reliance on Reynolds’s footnote 26 for support further compels the conclusion that no judicial determination need be made before applying the jurisdictional bar announced in Totten. Kasza, 133 F.3d at 1166.
After a careful review of Supreme Court case law, as well as our own holding in Kasza, I conclude the state secrets privilege announced in Reynolds does not limit or modify Totten or its bar on judicial review of cases where the subject matter of the lawsuit is a state secret. Rather, Totten continues to permit a court to determine that the subject matter of a suit is beyond judicial scrutiny and may properly be dismissed at the pleading stage. See Reynolds, 345 U.S. at 11 n. 26, 73 S.Ct. 528; Kasza, 133 F.3d at 1166. Other courts have come to the same conclusion. See Guong v. United States, 860 F.2d 1063, 1066 (Fed.Cir.1988) (“A close reading of Reynolds reveals that it does not limit or modify the authority of Totten or its rationale.”). While the Supreme Court certainly could have supplanted Totten with Reynolds, it did not, and the majority should not do so in this case.
II
The majority opinion also errs in limiting the application of Totten to contract claims. While such a limitation is necessary to reach the result the majority is determined to announce in this case, the holding in Totten belies such a confined application. Rather, the rule announced in Totten extends to claims for tort or constitutional violations arising from the secret contractual relationship.
The district court acknowledged that proof of the existence of a contract for secret services between the Does and the CIA was a fact under Totten that would have precluded the continuation of this litigation. In an attempt to narrow the application of the Totten bar, however, the district court declared that “[rjegardless of whether a secret contract does exist, there are substantial issues and claims remaining in this case that lie outside the reach of Totten.” Doe v. Tenet, 99 F.Supp.2d 1284, 1289 (W.D.Wash.2000). The district court reasoned that
[the Does] may be able to base their entitlement to receipt of the CIA’s monetary stipend on theories other than contract. For example, if plaintiffs are able to prove that they had an entitlement to benefits based on a promissory or equitable estoppel theory, or if there is a regulatory or statutory basis for their entitlement, then they may be able to show a constitutionally protected property interest, regardless of Totten.
Id. at 1291 (footnote omitted).
The district court’s limitation of Totten to contracts for secret services finds no support in Totten or its progeny. See, e.g., Weinberger v. Catholic Action of Hawaii/Peace Ed. Project, 454 U.S. 139, 146-47, 102 S.Ct. 197, 70 L.Ed.2d 298 (1981) (applying Totten to a National Environmental Policy Act claim); Guong, 860 F.2d at 1065 (applying Totten to bar claim for *1161failure to rescue); Fitzgerald v. Penthouse Int'l, Ltd., 776 F.2d 1236, 1241-42, 1244 (4th Cir.1985) (citing Totten in support of dismissal of libel action); Kielczynski v. CIA 128 F.Supp.2d 161, 162-63 (E.D.N.Y. 2001) (rejecting argument that constitutional claims arising from contract for secret services fall outside of Totten doctrine), aff'd sub nom. Kielczynski v. Does 1-2, No. 01-6103, 2003 WL 187164 (2d Cir. Jan.23, 2003) (unpublished disposition). Totten itself did not limit its holding to those cases involving contracts for secret services. Instead, the Court held that “public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential.” 92 U.S. at 107 (emphasis added). The Court did not limit its holding to those circumstances where a secret contract must be revealed. Rather, the Court held, much more generally, that the maintenance of a suit is forbidden where any matter which the law regards as confidential would have to be disclosed. Id.
The breadth of the Totten doctrine is demonstrated in its application in Weinberger v. Catholic Action of Hawaii/Peace Ed. Project, 454 U.S. at 146-47, 102 S.Ct. 197. In Weinberger, the Supreme Court reversed our holding that the Navy could be required to prepare and release a “hypothetical” environmental impact statement with regard to the operation of one of its Hawaiian magazines capable of storing nuclear weapons. Id. at 140, 147, 102 S.Ct. 197. The Supreme Court observed that because the locations of nuclear weapons storage facilities were classified for national security reasons, “the Navy [could] neither admit nor deny that it propose[d] to store nuclear weapons at [the Hawaiian facility].” Id. at 146, 102 S.Ct. 197.
In holding that the Navy was therefore not required to prepare a “hypothetical” environmental impact statement, since it would necessarily result in the disclosure of classified information, the Court concluded that the degree of the Navy’s compliance with the relevant environmental statutes was a matter “beyond judicial scrutiny.” Id. Citing Totten, the Court concluded that the maintenance of this suit was forbidden since the case involved a matter which the law itself regards as confidential. Weinberger, 454 U.S. at 146-47,102 S.Ct. 197.
These cases illustrate that the Totten doctrine applies to the facts of this case regardless of whether the Does’ claim is based on a secret contract with the CIA or on other theories of relief that necessarily involve the disclosure of that secret relationship. Clever pleading cannot evade a clear prohibition.
As with a claim sounding strictly in contract, a claim based on theories of estoppel would require the Does to actually demonstrate a relationship with the CIA. It would require that the Does prove, for instance, a binding representation made by the CIA to the Does on which they relied to their detriment. But the very existence of such a relationship or implied contract for secret services between the Does and the CIA is a secret that cannot be disclosed, since disclosure of this fact would inevitably “compromise or embarrass our government in its public duties, or endanger the person or injure the character of the agent.” Totten, 92 U.S. at 106.
Any attempt to demonstrate a regulatory or statutory basis for an entitlement to benefits from the CIA must fail for the same reason. Even assuming that the Does could demonstrate that either the statutory language of Section 403h, the statute from which the term “PL-110” is derived, or the regulations regarding the support provided to former PL-110 resett-*1162lees, actually mandate the relief requested, they would still have to prove that they were indeed individuals classified as PL-110s.4 That is, the Does would have to show that a relationship or an agreement existed between themselves and the CIA that would entitle them to seek relief under these specific statutes and regulations for the benefits they now claim.
The district court also found that the Does “have sufficiently stated a claim that the government violated their substantive due process rights by creating a special relationship with plaintiffs and then failing to provide for their basic needs and protect them from deprivations of liberty, or by affirmatively placing them in danger.” Doe v. Tenet, 99 F.Supp.2d at 1293. The Does could, as a general matter, assert a violation of their due process rights if (1) the CIA created a special relationship with them and thereafter abused that special relationship, or (2) if the CIA affirmatively placed the Does in danger. See L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir.1992). To succeed on their substantive due process claim, the Does would have to establish either that a relationship with the CIA in fact existed or that the CIA affirmatively placed them in danger. This they cannot do, for “the employment and the service were to be equally concealed.” Totten, 92 U.S. at 106.
Ill
Totten bars judicial review of cases arising out of secret contracts for espionage services even where the plaintiff alleges national security is no longer at risk because there has been public acknowledgment of the contract. Unlike the majority, I have no difficulty rejecting the plaintiffs’ invitation to second-guess the DCI’s determination of what information remains harmful to national security or otherwise embarrassing to the federal government.5
The highest judicial deference is owed to the DCI’s determination that disclosure of the relationship between the Does and the CIA would pose a threat to national security. See 50 U.S.C. § 403-3 (providing that as part of its responsibilities, the DCI shall “protect intelligence sources and methods from unauthorized disclosure”). As the Supreme Court has declared, “Congress intended to give the Director of Central *1163Intelligence broad power to protect the secrecy and integrity of the intelligence process. The reasons are too obvious to call for enlarged discussion; without such protections the Agency would be virtually impotent.” CIA v. Sims, 471 U.S. 159, 170, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985).
In Sims, the Supreme Court aptly observed that judges are ill-suited to evaluate these secrecy considerations:
We seriously doubt whether a potential intelligence source will rest assured knowing that judges, who have little or no background in the delicate business of intelligence gathering, will order his identity revealed only after examining the facts of the case to determine whether the Agency actually needed to promise confidentiality in order to obtain the information.... Moreover, a court’s decision whether an intelligence source will be harmed if his identity is revealed will often require complex political, historical, and psychological judgments.
And it is the responsibility of the Director of Central Intelligence, not that of the judiciary, to weigh the variety of complex and subtle factors in determining whether disclosure of information may lead to an unacceptable risk of compromising the Agency’s intelligence-gathering process.
Id. at 176,180,105 S.Ct. 1881.
The Does nevertheless assure the court that litigation of this case would not involve disclosure of any matter that would pose a threat to the nation’s security interests, particularly where the espionage activities at issue occurred so long ago.
We should reject the Does’ invitation to circumvent Totten, a case that itself was not decided until ten years after the end of the Civil War and, presumably, until after the need for secrecy had subsided. Instead, we would be well advised to adopt the rule set forth by the Federal Circuit in Guong, holding that “it cannot be doubted that Totten stands for the proposition that no action can be brought to enforce an alleged contract with the government when, at the time of its creation, the contract was secret or covert.” Guong, 860 F.2d at 1065 (emphasis added). The Does’ argument must fail because, as the Federal Circuit recognized, “what may seem historical trivia to [the plaintiff] may be of great moment to the government, which has a much broader view of the world scene.” Id. at 1066.
Nor do I find persuasive the plaintiffs’ argument that the existence of ambiguous correspondence allegedly exchanged between the parties transform their secret arrangement into a public one. See id.; see also Mackowski v. United States, 228 Ct.Cl. 717, 719 (1981) (rejecting the same argument and finding that speculation is not equivalent to public disclosure). To protect this country’s legitimate interest in maintaining its national security, the existence of the alleged relationship between the Does and the United States is itself a fact not to be disclosed, and without this fact the case may not proceed.6
*1164IY
Also unpersuasive is the majority’s reliance on modern judicial proceedings designed to protect confidential information from disclosure during the course of litigation, such as in camera proceedings, to save the Does’ claims from dismissal. The district court quoted Webster v. Doe, 486 U.S. 592, 604, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988), to support its assertion that district courts have “latitude to control any discovery process which may be instituted so as to balance [plaintiffs’] need for access to proof which would support a colorable constitutional claim against the extraordinary needs of the CIA for confidentiality and the protection of its methods, sources, and mission.” Doe v. Tenet, 99 F.Supp.2d at 1290 (quoting Webster, 486 U.S. at 604, 108 S.Ct. 2047). The district court noted that the CIA could also “request leave to submit materials in this matter under seal or in camera, or may assert the state secrets privilege recognized in [Reynolds ].” Id. The district court and the majority’s reliance on Webster and Reynolds is misplaced.
In Webster a discharged CIA employee filed a claim against the CIA alleging that he was fired because of his homosexuality. 486 U.S. at 595-96, 108 S.Ct. 2047. In an opinion where the majority never cited Totten, the Supreme Court held that, although the Director’s discretionary decision to discharge an employee for national security reasons was not subject to judicial review under the Administrative Procedure Act, id. at 601, 108 S.Ct. 2047, the discharged employee’s constitutional claims were judicially reviewable. Id. at 603-04, 108 S.Ct. 2047. The Webster Court reasoned that in enacting the relevant statute, Congress did not mean to impose restrictions denying courts the authority to resolve constitutional claims arising from the DCI’s termination decisions. Id. at 604, 108 S.Ct. 2047. The Webster Court recognized that “claims attacking the hiring and promotion policies of the [CIA] are routinely entertained in federal court....” Id. The Court also reasoned that the employee’s claims stemmed from the existence of the employment relationship and the information sought involved the “same sort of rummaging” found in employment cases. Id. In those circumstances, the Court concluded, the district court had the latitude to balance the plaintiffs need for access to proof with the government’s need for confidentiality. Id.
Unlike the case at hand, Webster did not involve disclosure of the type of secret agreement that would preclude litigation under Totten. There is a difference between the domestic employment of Agency workers and foreign spies. It is no secret that federal employees work for the CIA in a variety of sensitive positions. Terminating one for an alleged impermissible reason is the grist of many labor and employment lawsuits. To the contrary, the Does cannot even establish the existence of their secret employment without running afoul of Totten. The “sort of rummaging” permissible in Webster is intolerable in cases controlled by Totten. Weinberger, 454 U.S. at 147, 102 S.Ct. 197 (citing Totten, 92 U.S. at 107).
The district court’s reliance on Reynolds as authority to conduct in camera proceedings after forcing the government to answer the Complaint, thereby revealing the secret fact of employment, is likewise misplaced. The Reynolds Court held that *1165when this is the case we should not jeopardize national security by “insisting upon an examination of the evidence, even by the judge alone, in chambers.” Reynolds, 345 U.S. at 10, 73 S.Ct. 528 (emphasis added). Reynolds recognized that in those situations described by Totten as “inevitably leadpng] to the disclosure of matters which the law itself regards as confidential,” Totten, 92 U.S. at 107, no amount of judicial oversight is sufficient to protect the national security interests at stake.
Y
Although I do not think it is necessary to the resolution of this case, I note that even if the Does’ claims could somehow overcome the Totten bar (which they cannot), the Tucker Act, 28 U.S.C. § 1491(a)(1), requires the Does to bring this case in the Court of Federal Claims.
The Tucker Act grants exclusive jurisdiction to the Court of Federal Claims for suits against the United States whenever an action seeks money damages or arises from an express or implied contract. 28 U.S.C. § 1491(a)(1); Demontiney v. United States ex rel. Dept. of Interior, 255 F.3d 801, 810 (9th Cir.2001).7 This jurisdictional limitation extends to constitutional claims against the United States that are dependent on rights provided under a government contract. Tucson Airport Auth. v. Gen. Dynamics Corp., 136 F.3d 641, 647 (9th Cir.1998) (holding when constitutional claims are premised on the notion that the United States has some contractual obligation to the plaintiff that it has failed to satisfy, the claims are contractually based and must be heard in the Court of Federal Claims); North Star Alaska v. United States, 14 F.3d 36, 37 (9th Cir.1994) (holding if a plaintiffs claim is concerned with rights created within the contractual relationship, it falls within the Tucker Act).
The majority seeks to avoid this second jurisdictional obstacle by cleverly dissecting the Does’ claims and recasting some of them as independent of the underlying contract. For example, the majority finds that the Does may have a liberty or due process claim outside of the Tucker Act because they allege that the CIA placed them in danger by bringing them to this country, providing them with false identities, and then failing to take care of them when Mr. Doe lost his job. The Does’ “intentional endangerment” claim, however, is nothing more than a claim that the United States failed to provide for the Does as required by the parties’ alleged agreement.
In the absence of an agreement with the government, the Does would have neither a false history nor an expectation of governmental aid. If the government owed the Does any duty at all, the source of that duty must be the alleged contract. Tucson Airport Auth., 136 F.3d at 647 (finding claim contractually based where “[the] duty, if it exists, derives from the contract”); see also Up State Federal Credit Union v. Walker, 198 F.3d 372, 377 (2d Cir.1999) (finding that the parties’ dispute was contractual in nature and subject to the Tucker Act because, had the parties not entered into the contract, the plaintiff would have no claim against the government); Kielczynski, 128 F.Supp.2d at 160 (rejecting a former covert employee’s argument that the source of his rights was the due process clause and finding instead *1166that his cause of action was ultimately based on his contract with the CIA).
Likewise, the Does’ due process claim— declaring that the Does seek only to compel “a constitutionally adequate hearing in which to adjudicate their rights” — is based on the their alleged secret contract with the CIA. In Kielczynski, a factually indistinguishable case, a district court rejected the same due process argument the Does raise here. 128 F.Supp.2d at 160-61. There, the plaintiff, who had been a former spy for the CIA, argued that the CIA’s failure to conduct an adequate hearing in order to determine whether he was entitled to additional benefits violated the due process clause. Id. at 160. In that case, the court had no problem holding that the Tucker Act precluded it from exercising jurisdiction over the plaintiffs claim because “the very existence of the alleged due process claim hinge[d] on the existence of[the] contract.”8 Id. at 161, aff'd sub nom. Kielczynski v. Does 1-2, 2003 WL 187164 (2d Cir. Jan.23, 2003) (unpublished disposition).
The Does’ claim that CIA regulations and procedures entitle them to continued support as persons brought into the United States pursuant to the PL-110 program is also contractually based. The Tucker Act’s jurisdictional grant includes claims upon any implied contract with the United States. The Does’ PL-110 status claim is nothing more than an assertion that abstract CIA procedures, combined with the Does’ status as participants in the PL-110 program, create an implied contractual obligation to pay them additional monetary support.
Finally, the Does’ estoppel claim is contractually based because it depends on their ability to prove that the CIA entered into an agreement upon which it intended, or the Does rightfully believed that it intended, the Does to rely. See Watkins v. United States Army, 875 F.2d 699, 710 (9th Cir.1989). The Does’ estoppel claim ultimately rests on their allegation that they entered into an agreement with the CIA, the Does satisfactorily performed their end of the bargain, and the CIA thereafter failed to perform as promised. Under our case law, the Does’ estoppel claim is contractually based and must be heard in the Court of Federal Claims. Tucson Airport Auth., 136 F.3d at 647-48; North Star Alaska, 14 F.3d at 37.
We lack the power to exercise subject matter jurisdiction when Congress has given it to another court. The Does should not be permitted to evade the valid jurisdictional limitations of the Tucker Act by labeling their action as something other than what it truly is: a breach of contract claim.
VI
There has been no change in the law of spy contracts since Totten was decided in 1875. The secret existence of the espionage relationship and a claim for greater compensation was not justiciable then; it is not justiciable now. Once it is clear that the plaintiffs action is controlled by Tot-ten, no further proceedings are required and we must dismiss the case. The law for this class of cases has remained constant for 128 years.
We cannot avoid our obligation to follow Totten by suggesting that somehow the law has evolved to a point where the unequivocal rule announced therein is no longer necessary. Totten has not been supplanted by procedural rules enacted by Congress in order to protect confidentiali*1167ty during the discovery phase of litigation under congressionally created causes of action. Unless the Supreme Court revisits Totten or Congress provides a new statutory remedy to further compensate former spies, we are required to abide by the Court’s holding that “public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential.... ” 92 U.S. at 107; see, e.g., Landrigan v. Stewart, 272 F.3d 1221, 1229 (9th Cir.2001) (“[W]e must leave it to the [Supreme] Court to overrule its own cases, if and when it decides to do so.”); Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir.2001) (“Binding authority must be followed unless and until overruled by a body competent to do so.”).
Proof of the existence of a contract for secret services or of a secret espionage relationship with the CIA is “itself a fact not be disclosed.” Totten, 92 U.S. at 107. Because “[t]he secrecy which such contracts impose precludes any action for their enforcement,” id., the Does’ lawsuit is not justiciable under Totten. Even if the Does’ suit could be heard in federal court, the Tucker Act mandates that it be filed in the Court of Federal Claims. Because the court’s opinion fails to adhere to the jurisdictional limitations announced by the Supreme Court and enacted by Congress, I respectfully dissent.
. 28 U.S.C. § 2674 ("The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances ....").
. The majority overlooks the fact that in this case, like Totten, the very subject matter of the suit is the state secret, and therefore Reynolds is not controlling authority and no formal invocation of the evidentiary privilege is necessary.
. The district court dismissed the second case as moot. See Kasza, 133 F.3d at 1163.
. In any event, it is unlikely that the Does would be able to demonstrate that either Section 403h or the regulations regarding so-called PL-110s mandate such relief. Section 403h simply provides that in his discretion, the Director of Central Intelligence (“DCI") may admit aliens into the United States for permanent residence "without regard to their inadmissibility under the immigration or any other laws and regulations.” 50 U.S.C. § 403h. Nothing in the language of the statute itself even alludes to the provision of support, financial or otherwise, by the CIA or any other governmental agency. Further, the regulations provided to us demonstrate that although the CIA may have granted some benefits and support to others alleged to have been PL-110s, none of those regulations mandate the provision of such support. In fact, the regulations clearly indicate that the amount and extent of support provided is wholly within the discretion of the DCI and may be terminated at any time. To illustrate, a redacted 1990 internal CIA Regulation noted that the Agency's support "normally terminates when [an alien] acquires citizenship in our Country, but may be terminated earlier.”
. I reject the majority's view that judicial review of secret contracts for espionage services may actually enhance national security. According to the majority, if suppliers of military and espionage-related goods and services come to expect that promises cannot be enforced, their willingness to offer their services may in the long run dissipate. Maj. Op. at 1152. But such a policy determination is not ours to make. Rather, that decision is entrusted to the Executive Branch. The better rule is to dismiss such cases at the outset of the litigation without forcing an acknowledgment by the government and before any of the forbidden details can inadvertently come to light.
. A broader reading of Totten is consistent with the Supreme Court’s recognition of the public policy interest in, and the critical need for, secrecy in the intelligence field. Reviewing the congressional hearing testimony of Allen Dulles, the CIA’s third DCI, and of Air Force General Vandenberg in support of the National Security Act of 1947, the Court in Sims, 471 U.S. at 171-172, 172 n. 16 (1985), quoted none other than George Washington on the need for complete secrecy in this sensitive area of government operations:
Secrecy is inherently a key to successful intelligence operations. In the course of issuing orders for an intelligence mission, George Washington wrote to his agent:
"The necessity of procuring good intelligence, is apparent and need not be further urged. All that remains for me to add is, that you keep the whole matter as secret as *1164possible. For upon secrecy, success depends in most Enterprises of the kind, and for want of it they are generally defeated ...." 8 Writings of George Washington 478-479 (J. Fitzpatrick ed.1933) (letter from George Washington to Colonel Elias Dayton, July 26, 1777).
. The Tucker Act grants jurisdiction to the Court of Federal Claims:
to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliq-uidated damages in cases not sounding in tort.
28 U.S.C. § 1491(a)(1).
. The Kielczynski court specifically rejected the reasoning of the district court in this case. Id. at 161.