THE STATE SECRETS PRIVILEGE

and

THE SUPREME COURT

By Shannon Mackenzie Orr

When the Supreme Court announced its cases for the current term, legal scholars and
journalists were quick to notice the Court’s corporate-heavy docket. As previously reported
by Right Respect, most of the current attention is focused on FCC v. AT&T, a case that
could drastically increase the privacy rights of corporations by providing corporations with a
personal right to privacy and would allow corporations to shield themselves from transparent
governance for reasons of “embarrassment.” In addition to FCC v. AT&T, however, is a set
of corporate cases that may have important implications for human rights advocates around
the world, General Dynamics Corp. v. United States, No. 09-1298, and The Boeing Company v.
United States, No. 09-1302, which will address one of the most powerful tools in the
Executive Branch’s legal armory: the state secrets privilege.

This piece explores the state secrets privilege in the context of current and possible
litigation before the Supreme Court. The piece also examines issues on the horizon if the
privilege is extended, including applications for the privilege in our ever-expanding notion of
the global “war on terror”.

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The Privilege Examined

The states secrets privilege is an evidentiary

privilege created entirely out of legal
precedent that permits the government to
block the release of any information in a
lawsuit that, if disclosed, would cause harm to
national security. The privilege has existed
since the Civil War era, but its contemporary
manifestation and the rules governing its
invocation are derived from the 1950’s case
United States v. Reynolds, 345 U.S. 1 (1953), which
barred a wrongful death suit brought against
the government by the widows of three civilian
men who were killed in a military plane crash. When the widows requested a copy of the
accident report, the government refused to provide it, claiming that the release of the report
would disclose details about secret military equipment that was being tested onboard the
aircraft at the time of the crash. The Supreme Court upheld the government’s state secrets
claim and bared the disclosure and use of the report during the trial. However, in 2004,
when the accident report was finally declassified, the report included no information
regarding secret military equipment, and it has been widely acknowledged that the state
secret privilege in Reynolds was exercised simply to allow the military and the government to
escape both embarrassment and claims of negligence (See Herring v. United States, No. 03-
CV-5500, 2004 WL2040272, at 7–8 (E.D. Pa. Sept. 10, 2004), aff’d, 424 F.3d 384 (3d Cir.
2005)).

The government’s abusive exercise of the privilege in 1953 is just one demonstration of the
principle problems with the states secrets privilege. First, any information or privileged
material is completely removed from litigation and may be unobtainable for discovery
purposes. Therefore, although the privilege is meant only to be an extremely limited
evidentiary rule blocking the use of only top secret evidence, when invoked, the privilege
often has the practical ramification of dismissing the plaintiff’s entire suit. Secondly, courts
have rarely conducted in camera examinations of the evidence to be precluded, and
therefore, the government’s need of the privilege is never verified. Without proper
verification, as demonstrated in Reynolds, the incredible exclusionary power of the privilege
can be used to isolate the government from review and can shield politicians as well as
agency and military personnel from transparency.

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Case History: General Dynamics and Boeing

The consolidated cases of General Dynamics and Boeing emerge out of an eighteen-year old
contract dispute between the private defense contractors and the United State military
regarding the Navy’s $4.8 billion A-12 Avenger program. At the time of the A-12 program,
the Navy engaged both General Dynamics and Boeing to design and build the A-12 Avenger
aircraft to replace older carrier-based aircraft, and at one point, the Navy ordered as many as
850 new aircrafts. By 1991, the project was eighteen months behind schedule and over $1
billion over budget, prompting the Pentagon to cancel the entire project, and therefore,
canceling the contracts with both companies.

The Pentagon canceled the contracts by declaring default, requiring both companies to
return over $1 billion paid to them by the government (as opposed to canceling the contract
for reasons of convenience, which would have allowed both companies to retain monies for
their expenses that were reasonably incurred). The companies promptly sued over the
government’s cancellation, stating that the defaults were caused by the Navy’s unwillingness
to share classified technologies required to effectuate the A-12 program. The government,
fearing that the pending litigation would require that classified technologies be exhibited on
public record, promptly exercised the state secrets privilege causing the entire case to be
dismissed.

On certiorari, the Court will address the limited question as to whether or not the
government may sue a federal contractor for breach of contract and then subsequently use
the state secrets doctrine to prevent the contractor from raising a defense that would require
the contractor to disclose secret information. Despite this limited context, human rights and
civil liberties advocates may be looking to these cases to shed light on how the “most
conservative Court since the mid-1930’s” (as pronounced by scholar Erwin Chemerinsky) will
discuss and view the limitations and ramifications of the Executive’s powerful evidentiary
privilege.

The Supreme Court’s choice to grant certiorari for the General Dynamics and Boeing cases
provides a first look at how the Court will debate and address some of the difficult issues
surrounding the privilege. In addition, the consolidated cases may also help define the role
and scope of the privilege when it is used in cases dealing with private corporations whose
work is intrinsically involved with military and government operations. Although it is it
suspected that the Court will seek to rule narrowly on the facts of the case rather than tackle
some of the larger issues with the privilege, it is important to note that General Dynamics and
Boeing will be heard at a time when the state secrets privilege has been recently invoked to
completely bar any litigation, investigation and judicial review of allegations of severe human

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rights abuse and illegal activity by government and military personnel accomplished in the
name of national security and the War on Terror.

Implications of Decision

Any discussion regarding the

scope and limitations of the
privilege by the Court in General
Dynamics and Boeing may have
drastic consequences for
litigants in two particular cases
who are currently seeking to
contest actions accomplished in
pursuit of the War on Terror:
Wilner v. National Security
Agency, No. 09-1192, currently
pending in the Supreme Court and awaiting certiorari, and Mohamed v. Jeppesen Dataplan, a
case recently dismissed in its entirety by a shocking Ninth Circuit ruling.

In Wilner, twenty-three private attorneys who represent clients detained in Guantanamo Bay
have sued under the Freedom of Information Act to obtain records that they claim will
demonstrate that the Bush Administration’s program of secret, warrant-less, electronic
wiretapping eavesdropped on their confidential attorney-client conversations. However, the
Second Circuit dismissed the case, ruling that government intelligence agencies may refuse
to admit or deny that they have records about intelligence gathering, and therefore block
demands for such records.

In an even more dramatic display of events, the Ninth Circuit, in an en banc hearing on
September 12, 2010, granted a full dismissal of Mohamed v. Jeppesen Dataplan, demonstrating
judicial approval for the most powerful exercise of the Executive Branch’s state secrets
privilege to date. Mohamed involves five non-citizens who claim that publicly traded
Jeppesen Dataplan (a Boeing Subsidiary corporation) transported them via aircraft (flights
commonly referred to as “torture flights” or “ghost flights”) to CIA “black sites” and
provided logistical support for their imprisonment and torture as a part of the CIA’s
“extraordinary rendition” program. The plaintiffs sued Jeppesen directly, but before
Jeppesen even had time to respond to the complaint, the government, under the Bush
Administration, interceded and claimed the state secrets privilege on behalf of Jeppesen.
The CIA claimed that even addressing the issue of standing would have revealed state
secrets.

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When the case was appealed to the Ninth Circuit, the Obama Administration decided to
reaffirm the Bush Administration’s claim of state secrets, despite campaign promises to be
“committed to an unprecedented level of openness in government” (see here). The Ninth
Circuit agreed to dismiss the entire case, not even allowing it to go forward based on
evidence demonstrated through public records. The dismissal not only further isolated the
“extraordinary rendition” program from judicial review, but also created an astounding legal
precedent and unparalleled expansion of executive power, standing for the position that the
Executive may bar suits against private companies - even in cases where the government is
not a party to the suit - solely because the private company was hired to do outsourced work
pertaining to national security and had access to secret information.

The Supreme Court has been hesitant to address the more dramatic exercises of the
privilege that have arisen in the context of the war on terror, presumptively due to their
politically sensitive nature. However, without further limitations in scope and directions
from Supreme Court on this judicially created doctrine, corporations will now be able to
reap the benefits of the government’s privileges of immunity, secrecy and isolation from
critical review. The converse, representing perhaps a more sinister reality, would allow the
government and military to completely outsource their agenda to private entities in order to
avoid constitutional and international legal requirements and then subsequently shield the
private entities from litigation or review by offering them the protections of the state secrets
privilege.

Blurring the Definition of “Inherent Government Functions”

General Dynamics, Boeing, and Mohamed illustrate the influential role of globalization and
outsourcing in our corporate and political landscape. The American government is no
exception to current corporate trend of outsourcing its needs to subcontractors, and in
doing so, the lines between public and private, military and civilian, local and international
have becoming increasingly blurred. Traditional jurisprudence assumes a natural and distinct
separation between public and private entities, but the unprecedented expansion of the
government under the guise of national security and the War on Terror, has demonstrated
that the system does not have the mechanisms in place to deal with the increasingly
interwoven rights and duties of government and private corporations.

Federal rules state that contractors may not perform "inherently government functions,” but
outsourcing during the War on Terror and for purposes of national security have allowed for
private companies to become intrinsically involved in government functions - many involved
in some of the most top secret operations entailing direct military performance. Facts

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surrounding the rendition cases suggest that the CIA has outsourced much of the actual
detainment, transport and interrogation used on an
undisclosed number of detainees involved in the
“extraordinary rendition” program, relegating many of the
details to outsourced companies such as Jeppesen or foreign
governments where the United States knew torture was
highly likely to occur. Likewise, the human rights violations
that made international headlines at Abu Ghraib prison were
attributed not to actual military personnel, but instead
almost exclusively to the employees of outsourced defense
contractors CACI International, Inc. and L-3 Communications Corporation.

According to PBS journalist Steven Grey, outsourcing is absolutely necessary in order for
programs of torture and illegal detainment to occur because the very act of “witnessing such
extreme torture close at hand and doing nothing would be tantamount to taking part -- a
straightforward violation of article 18, section 2340A of the U.S. Criminal Code. If the
prisoner died during such torture, a U.S. court could, in theory, sentence a CIA official to
death.” (See here). Grey further explains that CIA rules prevent an agent from even
witnessing a “strong-arm interrogation.” Accordingly, in order to bypass United States
criminal code and international treaty and law (and therefore avoid legal liability), the
rendition programs implicitly require government agencies to outsource their requirements
to those who are not subject to the same transparency and legal requirements.

Although Mohamed and Abu Ghraib represent two of the more dramatic examples, they are
not rare instances of the outsourcing of traditional government duties in the name of
national security. For two years, the Washington Post worked to create an ongoing
investigative project entitled “Top Secret America” which seeks to examine and evaluate
how the government has dramatically expanded its reach after the attacks of September 11,
2001. The project has discovered more than 2,000 private corporations that are intimately
involved in the Top Secret arena of national security, including: defense contractors,
consultants, scientific laboratories, technology companies and telecommunications
corporations. Many of these companies are responsible for physically orchestrating the
government’s military, security, law enforcement, border control, technology operations and
investigative operations.

However, unlike the government, they do not have the same duties to abide by legal
standards regarding transparency and review, nor are they subject to the same legal and
constitutional requirements regarding how they act in areas of war and how they handle the
rights of civilian citizens at home. Further, as demonstrated in the extraordinary rendition

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cases and at Abu Ghraib, it is clear that often the employees handling outsourced
government functions do not have the proper training to deal with complicated military and
police issues. Further, many of these corporations are publicly traded and are primarily
responsible to their shareholders’ needs – shareholders who may or may not have competing
and conflicting interests with the overall needs and goals of the American people and the
international community.

As the Washington Post’s project makes clear, the entanglement between private corporations
and public government functions requires that there be more corporate and government
transparency in order to ensure that the rights of all citizens are being maintained under the
laws and Constitution of the United States and under international law.

On the Horizon

Americans may feel distanced from this debate because much of the media focus has been
on the role of defense contractors working with enemy combatants in foreign lands.
However, many Americans may be surprised that some of the corporations intimately
involved with national security’s top secret issues are names which many citizens do business
with on a daily basis: AT&T, Adobe, Verizon and Hewlett Packard (see here). These
companies participation in national security represents the increasing role that non-defense
orientated companies are playing in domestic theater in the War on Terror.

As the Supreme Court prepares to hear arguments for General Dynamics and Boeing, the
Obama Administration is busy drafting legislation that will require online communications
providers (including: social network providers, cell phone providers and web browser
providers) to be technically equipped to comply with wiretap orders. The administration
hopes that new electronic communication wiretaps may intervene terrorist communications
by tracking possible encrypted messages in citizens’ social media accounts, text messages,
email messages and peer-to-peer Internet communications (such as Skype and instant
messaging).

In addition, the Obama administration has already earmarked billions of dollars devoted to
new Smart Grid technology which seeks to refurbish the electrical grid by connecting
corporate and household electrical appliances (including water usage, kitchen electronics,
household computers, TVs, and radios) in order to provide real-time Internet streaming
communication between the devices and the corporate or government owned utility
companies. Hopes are that the new Smart Grid will dramatically assist with carbon
reductions, however it will intrinsically require utility companies to have real-time Internet
records documenting citizens’ and corporations’ specific energy usages (a common example

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includes records of when you take a shower, in what room, for how long, at what time of day,
including how hot you prefer your water). The law is far from being clear about citizens’
privacy rights to their social media accounts, Smart Grid records, cell phone data, text
messages, instant message communications, online video communications, online advertising
tracking data and email communications. Currently, it is unclear as to who will have rights
and ownership to the records and information; whether or not they are accessible by
employers, the government or law enforcement; whether those records can be purchased,
sold or otherwise disseminated; and what standard of evidence, if any, is needed for the
government and law enforcement to access those digital personal and corporate records.

Because the laws protecting our most basic freedoms – freedom of speech and limits to
government searches and seizures, for instance – were established to protect us in the
tangible world, their protections become muddled (or in some cases nonexistent) in the
digital realm. As private technology companies face mounting pressure to increase their
profit margins by participating in the War on Terror or to cooperate with the government
by confirming their commitment to national security, citizens dependent upon those private
companies may find their privacy rights increasingly intruded upon. With the broad
application of the states secrets privilege and without further guidance from the Supreme
Court, such intrusion could be defended under national security. In fact, given the current
legal landscape, if the Supreme Court denies cert for Wilner and Mohamed, the government
may not only refuse to confirm or deny its access and use of private and corporate records,
but it may fully bar private litigants from seeking redress for injuries from private technology
and communications companies.

Conclusion

Terrorism picks its casualties outside of traditional battlefields by bringing death and
destruction to busy marketplaces, transportation stations and urban areas. It is therefore not
surprising that the private sector must play an important role in national security. There is
no easy answer to the question of where to draw the line that separates transparent
government and corporate action from the need to maintain state and military secrets. It is
clear, however, that human rights and the basic freedoms that our Constitution proselytize
requires that the Supreme Court address these issues and begin to contemplate a framework
in which we, as a society, can begin to balance these competing factors. How the Justices
question and address the role and limitations to the state secret privilege in General Dynamics
and Boeing may be an inkling as to how they will begin to focus on the larger issues of the
privilege and its role in our interconnected world.

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Right Respect will continue to follow General Dynamics and Boeing, as well as any other
pertinent state secrets cases up for review on the Supreme Court docket this term, providing
analysis and insight on the impact of these decisions on key human rights measures.

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