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Supreme Court: Is US unfairly hiding behind state-secrets privilege?

Since 1953, the US has been able to derail lawsuits it says could reveal state secrets. The Supreme Court will look at a case Tuesday that questions whether the privilege is being applied properly.

By Staff writer / January 17, 2011

The entrance of the US Supreme Court in Washington.




The US Supreme Court on Tuesday takes up a case examining whether the government properly invoked the state-secrets privilege to dismiss a civil lawsuit in a multibillion dollar defense contract dispute.

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The case is being closely followed because it could result in the high court clarifying the scope of the executive branch’s power to side-step the court system whenever officials claim sensitive national security information is at risk.

The dispute dates to 1991 when the US Navy terminated a defense contract to develop a carrier-based stealth jet fighter. The Navy claimed the contractors were behind schedule and had thus defaulted.

Fighting back, the contractors argued that the government itself had caused the contract delays in part by failing to share highly-classified stealth technology.

Contractors General Dynamics Corporation and The Boeing Company took the issue to court, asking a judge to reinstate the contract and award $4 billion in damages.

Government lawyers countered by invoking the state-secrets privilege – arguing that the case must be immediately thrown out of court to avoid the unauthorized disclosure of sensitive national security information.

The maneuver effectively pulled the rug out from under the defense contractors, making it impossible for them to confront government allegations that they had defaulted on their contract requirements. The courts complied with the government’s request, dismissing the lawsuit.

Was government playing fair?

On Tuesday, the 20-year-old dispute arrives at the Supreme Court where the justices will examine whether the government violated constitutional requirements of fundamental fairness when it used the state-secrets privilege in a way that prevented the contractors from presenting their side of the dispute in court.

“Neither the due process clause nor basic principles of fairness permit the government both to assert a claim and then to ensure its own victory by invoking the state-secrets privilege to preclude its opponent from interposing such a defense,” wrote Charles Cooper in his brief on behalf of Boeing.

“The government holds the unique power both to wield the sword of its claim and to simultaneously deprive its opponent of the shield of its defense,” Mr. Cooper wrote.

At the center of the case is the so-called state-secrets privilege. The privilege, established by the Supreme Court in a 1953 decision, authorizes the dismissal of certain court cases when evidence revealed in those cases might lead to disclosure government secrets.

Both the Bush and Obama administrations have invoked the privilege to dismiss litigation that the government claimed would threaten national security. In one case the US government was accused of kidnapping and torturing terror suspects; another involved charges of unlawful electronic surveillance of individuals inside the US.


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