Last month, the U.S. Supreme Court heard argument in a case that many, including the Constitution Project, had billed as the first state secrets case to come before the Court in almost 60 years. The case involves General Dynamics and Boeing, who challenge the Government’s assertion of the state secrets privilege to block their defense in a government contracting dispute. This state secrets privilege is the same one that the Government has successfully relied upon to block litigation of cases alleging that people have been tortured under the extraordinary rendition program or illegally spied upon under the NSA’s warrantless wiretapping program.
Those of us who have been working to promote reform of the state secrets privilege knew that the Supreme Court was likely to follow a narrow approach in the defense contractors’ case, which focuses on contracts rather than allegations of torture and violations of constitutional rights. But we were still surprised and deeply disappointed that at the oral argument there was almost no discussion of the state secrets doctrine itself. Sadly, it appears that the Supreme Court will once again miss an opportunity to update this doctrine for the post-9/11 world and restore the role of the courts in providing much-needed oversight.
The state secrets privilege was recognized by the Supreme Court in the 1953 case United States v. Reynolds, a wrongful death lawsuit brought by the widows of civilian engineers who were killed in the crash of a B-29 bomber. The widows sought the Air Force accident report as evidence, but the Court ruled that under the state secrets privilege, the Air Force did not even need to produce the report to the trial judge for an independent review. Nonetheless, the Court did recognize that the litigation could proceed based on remaining available evidence.
Since 1953, at the urging of the Executive Branch, the state secrets privilege has evolved from a doctrine that protects particular pieces of evidence from disclosure, to an immunity doctrine that has blocked any litigation at all of various lawsuits involving national security programs. Courts have increasingly deferred to executive branch claims of secrecy without conducting an independent review of the assertedly secret evidence to determine what is legitimately secret, and whether there is enough non-privileged evidence for a case to move forward. In the defense contracting case, a similar dynamic was at play, and the Government sought to prevent the contractors from litigating their defense. For this reason, the Constitution Project filed an amicus brief in support of the contractors, and urged the Court to take this opportunity to clarify that the privilege does not allow the Government to completely block litigation of claims on its own say so.
At the oral argument, the attorneys and the Justices all recognized that the Reynolds case was the key precedent to be considered. But the discussion focused on contract law and whether “sophisticated” parties like General Dynamics and Boeing could have negotiated for a provision that would explain what happens when a contract falls apart due to classified military specifications. Everyone assumed that the courts could not examine the underlying question of who was really at fault in breaking the contract.
No one asked whether there might be procedures, modeled on the Classified Information Procedures Act, under which the lower court could have analyzed who was really at fault under this contract gone bad. No one challenged the right of the Government to police itself in asserting that the state secrets privilege applied, or questioned the conclusion that the trial court was blocked from examining this issue. No one considered what would or should happen when the Government asserts the state secrets privilege against unsophisticated parties, who allege they were illegally tortured or spied upon, and who never had an opportunity beforehand to negotiate for a way to resolve such disputes.
Perhaps, those of us who seek to restore the role of the courts in independently reviewing evidence asserted to be secret should be glad that the Justices did not ask these questions. Most likely the interests of the defense contractors are not well-served by arguing for vigorous judicial oversight in such cases, so it is better if we live to fight another day. But it still feels like an opportunity was missed to revisit, review, and reform the state secrets doctrine. Let’s hope the Court’s opinion is similarly narrow and focused on contract law, and that it does no harm to the reform effort.
By Sharon Bradford Franklin, Senior Counsel, the Constitution Project