State Secrets Privilege at the Supreme Court Today

By Robert Chesney
Tuesday, January 18, 2011, 1:28 PM

Back in September I noted that the Supreme Court granted cert. in a pair of state-secrets privilege ("SSP") cases, General Dynamics v. United States and Boeing v. United States.  I wrote then that the cases raise an important issue, but not one that goes to the much-discussed controversies surrounding the government's use of the SSP to fend off litigaiton relating to rendition and surveillance:

The question presented? As framed in General Dynamics: ”Whether the government can maintain its claim against a party when it invokes the state secrets privilege to completely deny that party a defense to the claim.” As framed in Boeing, it’s basically the same thing, but with specific reference to Fifth Amendment Due Process concerns.

While any Supreme Court decision on the state secrets privilege is newsworthy, and much rides on this one both for the immediate litigants and others who become embroiled in similar disputes, we should not expect this to have much impact on the far-more controversial state-secrets cases such as Mohamed v. Jeppessen Dataplan.  At the end of the day, the controversy surrounding cases like Jeppessen stems in large part from the idea that the privilege can be used even when its effect is to prevent courts from considering claims of illegal government conduct.  The A-12 litigation, in contrast, presents the issue whether the government can itself advance a claim against a private entity while simultaneously invoking the privilege to deprive that entity of a defense.  Should a majority of the Court side with the General Dynamics and Boeing in this instance, anticipate that the decision will be written narrowly so as to avoid being seen to speak to the Jeppessen controversy. 

The Supreme Court heard oral argument in these cases this morning, and I'll post about that as soon as the transcript becomes available.  In the meantime, I want to comment on the editorial the Washington Post ran today on this topic.  The editorial urges three actions, which I'll address in turn.

First:

The Supreme Court . . . should reverse the result: The government should not have been allowed to prevail when its invocation of state secrets made it impossible for the companies to rebut the allegations.

At first blush the situation does seem unfair.  The government declared the companies in default of their contract obligations; the companies sued for breach; the companies argued that the government was at fault for any apparent default because the government failed to provide certain information; and the government has now stymied their attempt to prove this by invoking the SSPR in relation to that information (relating to stealth technology).  Why should the government not have to concede liability as the price for protecting the secret, just as it sometimes must dismiss the indictment when in the criminal setting a defendant has a constitutional right to access or use information the government wants to keep secret?  Well, one answer is that companies enter into contracts with the Pentagon in the shadow of existing law relating to the SSP, meaning that they should know that they may not have the same ability to sue in the event of breach as would be the case in ordinary commercial litigation.  That is to say, the companies should know ex ante that there are special risks insofar as the contract involves a classified technology, and should adjust their bids accordingly.  Or so one might argue. 

That brings us to the second argument:

The court should also take this opportunity to refine its earlier pronouncements on state secrets that have led lower court judges to err too much in the government's favor. In recent years, lower courts have often dismissed in the earliest stages lawsuits brought by those who claim to have been tortured or otherwise mistreated in the government's anti-terrorism efforts.

This repeats an oft-asserted but inaccurate claim to the effect that the use of the SSP to dismiss suits at the threshold (as opposed to using it solely to shield certain information from discovery or use at trial) is an innovation from the Bush years.  It is not.  As I wrote in this article a few years ago, this practice goes back at least to the 1970s.  That doesn't make it a good or a bad practice, but it does mean that it's not something invented recently in order to shield the executive branch from post-9/11 litigation.   As to the merits of this question, I think judges should be extremely reluctant to use the SSP to dismiss litigation at the pleading stage, but I also think it is illogical to entirely forbid the practice since, in at least some instances, it simply is not possible to proceed to the merits without disclosure of information that the SSP protects.  I don't know enough about the General Dynamics/Boeing case to say whether that is the case here. 

All of which is to suggest that the "timing of dismissal" issue is, to some extent, a red herring.  I think the debate in fact is driven by concern over the fact that the privilege has no exception for for cases alleging illegal government conduct.  So long as that is the case, the privilege one way (dismissal at the outset) or another (dismissal at summary judgment after blunted discovery) will cause results that appear very harsh indeed if you believe the plaintiff's allegations.   Which brings us to the third point argued by the Post:

Congress should also renew efforts to pass the State Secrets Protection Act, which would give judges more discretion to privately review information the government claims is too sensitive for public view and would make dismissal of a case a last resort.
The claim that judges lack discretion under current doctrine to privately review the information at issue is unfounded.  Judges may see -- and routinely do see -- the classified information that purportedly requires protection in these cases.  The notion that it might be otherwise -- that judges somehow just have to take the government's word for it -- stems from the fact that in United States v. Reynolds, back in '53, the Court decided not to require the government to produce a particular document to the court for its assessment, reasoning that it was perfectly obvious that it did indeed contain protected information.  It did not (or at least it did not contain the radar-related information that the government had claimed), and thus the case is rightly seen as having erred on that point.  But to be clear: this is not remotely representative of how SSP cases have operated for the last several decades.   
A final thought - I think it's odd that the bill calls for legislation without mentioning that the Justice Department in 2009 adopted a new and demanding internal screening process, which among other things obliges senior DOJ officials (rather than just, say, the head of the government agency trying to protect the officials) to make personal determinations that the invocation is warranted, and that requires referral of the matter both to relevant congressional oversight committees and to various Inspectors General in the event the privilege is used in a way that terminates litigation alleging government illegality.  That system naturally does not satisfy those who want a judicial determination of such issues, of course.