The Supreme Court Takes a State Secrets Case...But Not One You Likely Know About, Unless You Follow DOD Acquisitions

By Robert Chesney
Tuesday, September 28, 2010, 11:21 PM

The Supreme Court granted cert. today in General Dynamics v. United States and Boeing v. United States, both arising out of the massive, long-running contract dispute associated with the cancellation of the A-12 Avenger II program.  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.  Of course, it remains possible that the Court also will grant cert. in Jeppessen itself, though I predict they won't.

SCOTUSblog provides access to the cert petition and other papers here.  The links to the decision below were not working just now, however, so for immediate decision below (from the Federal Circuit) try here, and for a related earlier Fed Circuit decision dealing with the same issue try here.