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. 03CV-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 Page 3 of 9

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. Page 4 of 9

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 Page 5 of 9

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 Page 6 of 9

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 Page 7 of 9

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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