State Secrets

  • January 19, 2011
    Guest Post

    By Laura Donohue, Associate Professor of Law, Georgetown University Law Center. The analysis was first posted on ContractsProf Blog.
    Heads or tails, the government wins, Justice Kagan noted during oral argument this morning in the consolidated case of General Dynamics v. U.S. and Boeing v. U.S. (Nos. 09-1298 & 09-1302).

    The issue before the Court is whether the government can invoke state secrets privilege to prevent a superior knowledge defense in a civil suit.

    Plaintiffs argue that their 1988 contract to develop stealth technology for the A-12 Avenger relied on the government subsequently providing classified, technical information. The government's failure to do so resulted in the companies' inability to meet their development schedule.

    The government's contracting officer found default termination of the contract and demanded the return of unliquidated damages-defined broadly by the Acting Solicitor General during oral argument as claims not approved by the government, in this case, some $1.35 billion.

    The key problem with the plaintiffs' position is that there is no language in the contract indicating that the contractors were to receive specialized information from the government. To the contrary, the government set up a competitive situation, awarding pre-contracts to two teams, to see who could develop the most impressive stealth technology. As Acting Solicitor General Neal Katyal noted, the contract was to acquire technology, not to provide it.

    Katyal asserted that the courts should not be in the business of interfering in contract law, where sophisticated parties had the obligation to include any unwritten assumptions into the contract itself.

    He further stated that plaintiffs' failure to perform, explicitly contemplated in the language of the agreement, established the contracting officer's right to determine default. In light of Totten, plaintiffs had been on notice that state secrets may be asserted in subsequent suits.

    Herein lies the rub: Mr. Carter Philips, who argued for General Dynamics and Boeing, suggested that the government could not claim default termination and then hide behind state secrets when the contractors attempted to bring a superior knowledge defense. As the moving party, the government was in a position akin to that of a prosecutor in a criminal case-indeed, the money at stake was substantial: between $1.35 billion and $5 billion, depending upon the immediate calculus employed. Reynolds did contemplate such a situation and recognized that the government could not have it both ways.

  • January 18, 2011
    The Supreme Court will consider consolidated cases tomorrow over the government's use of the so-called "state secrets" privilege to shut down lawsuits that it says could endanger national security.

    The Wall Street Journal's Jess Bravin reports that the cases involve "aerospace giants Boeing Co. and General Dynamics Corp., which contend the government violated their constitutional rights by invoking the state secrets privilege to trump their claims in a long-running contract dispute."

    Bravin also notes that the Obama administration has continued to invoke the privilege, while acknowledging its potential for abuse. For example, the government might employ the privilege to scuttle a lawsuit that could reveal government failures rather than information damaging to national security. In 2009, Attorney General Eric Holder issued guidelines that he maintained would ensure it the state secrets privilege was properly employed.

    SCOTUSblog's Lyle Denniston provides extensive background of the state secrets privilege, and analysis of the consolidated cases.

    For additional background on state secrets, see video of an ACS panel discussion on the history and controversy of the doctrine.

  • September 9, 2010

    by Jeremy Leaming

    The federal appeals court decision rejecting a lawsuit brought by former prisoners charging the CIA with abducting and transporting them to secret prisons in other countries where they were tortured is garnering widespread derision as a dangerous continuation of unwieldy executive power.

    In Mohamed et al. v. Jeppesen Dataplan, Inc., the full U.S. Court of Appeals for the Ninth Circuit dismissed a lawsuit lodged in 2007 on behalf of five men kidnapped by the CIA and sent to other countries for imprisonment and interrogation. The ACLU represented the men and argued that they had been tortured during their imprisonment. The Bush and Obama administrations argued that the lawsuit should be dismissed because it could uncover so-called "state secrets," undermining national security. The Ninth Circuit sided with the government, maintaining that it represented a "rare case" in which the government's claims to protect national security were stronger than considering whether human rights were violated.

    The ACLU's Ben Wizner, who represented the former prisoners, said in a press release, "This is a sad day not only for the torture victims whose attempt to seek justice has been extinguished, but for all Americans who care about the rule of law and our nation's reputation in the world. To date, not a single victim of the Bush administration's torture program has had his day in court."

    The New York Times editorial board blasted the Ninth Circuit's decision, saying it "diminishes any hope that this odious practice [extraordinary rendition, where military captives are sent to secret prisons in other countries] will finally receive the legal label it deserves: a violation of international law."

    The Atlantic blogger Andrew Sullivan writes:

    The case yesterday is particularly egregious because it forbade a day in court for torture victims even if only non-classified evidence was used. Think of that for a minute. It shreds any argument that national security is in any way at stake here. It's definitionally not protection of any state secret if all that is relied upon is evidence that is not secret. And so this doctrine has been invoked by Obama not to protect national security but to protect war criminals from the law. There is no other possible interpretation.

    The Bush executive is therefore now a part of the American system of government, a system that increasingly bears no resemblance to the constitutional limits allegedly placed upon it, and with a judiciary so co-opted by the executive it came up with this ruling yesterday. Obama, more than anyone, now bears responsibility for that. We had a chance to draw a line. We had a chance to do the right thing. But Obama has vigorously denied us the chance even for minimal accountability for war crimes that smell to heaven.

    For discussion on the history of the government's use of the "state secrets" privilege, see an ACS panel discussion, including Wizner, here.

  • April 5, 2010
    Guest Post

    By Amanda Frost, associate professor of law, American University Washington College of Law

    Plaintiffs have won a rare victory against the government in a case involving the state secrets privilege. On April 1, 2010, Federal District Judge Vaughn Walker ruled in favor of Al-Haramain Islamic Foundation, Inc., a now-defunct Islamic charity that had sued the government for intercepting its employees' international telephone conversations without obtaining a warrant. Al-Haramain claimed the government's warrantless wiretap violated the Foreign Intelligence Surveillance Act (FISA), a federal law that limits the government's ability to eavesdrop on its citizens. The case is one of several challenging the National Security Agency's warrantless wiretapping program. The government has responded to all such lawsuits by arguing because its surveillance activities concern national security, the state secrets privilege requires dismissal of claims that it violated FISA.

    Yet FISA was enacted for the very purpose of preventing the government from eavesdropping without a warrant, and it provides a mechanism by which individuals or groups who believe they have been victims of an unlawful government wiretap can seek redress in the courts even when the claim relies on classified evidence. Under FISA, if a plaintiff establishes a "colorable basis" for believing that it has been subject to unlawful surveillance, the Court can then examine classified evidence in camera to determine whether the surveillance occurred, and if so whether it was lawful.

  • April 1, 2010

    U.S. District Court Judge Vaughn Walker rejected arguments initially offered by both the Bush and Obama administrations, ruling that the National Security Administration's (NSA) warrantless wiretapping broke federal law. Walker determined that the program violated the 1978 Foreign Intelligence Surveillance Act (FISA) which requires warrants that the NSA failed to obtain.

    Rather than mounting a legal defense of the NSA's program, the Obama administration only argued that the state-secrets privilege required the court to block the suit. Judge Walker bucked the administrations' invocations of the privilege, which he characterized as amounting to "unfettered executive-branch discretion" bearing "obvious potential for governmental abuse and overreaching." Walker's 45-page opinion made no mention of the Bush administration's argument that the NSA acted within the president's war time powers to override FISA.

    Writing at Wired's "Threat Level" blog, David Kravets called the ruling "a landmark decision."

    "It's the first ruling addressing how Bush's once-secret spy program was carried out against American citizens," Kravets reports. "Other cases considered the program's overall constitutionality, absent any evidence of specific eavesdropping."