For the first time in nearly 60 years, the Supreme Court on Tuesday will consider the limits of "state secrets," a legal doctrine the government often cites to quash lawsuits it says could expose information vital to national security.
The doctrine is well known for blocking former detainees from suing over abuses allegedly suffered in America's response to the Sept. 11, 2001 attacks.
But Tuesday's case involves aerospace giants Boeing Co. and General Dynamics Corp., which contend the government violated their constitutional rights by invoking the state secrets privilege to trump their claims in a long-running contract dispute.
Because it lacks the polarizing context of the post-Sept. 11 lawsuits, some say case offers the justices a somewhat uncontroversial way to examine the implications of the doctrine. Over the past 50 years, "the privilege has gone from a relatively obscure doctrine to a centerpiece of the executive branch's litigation strategy," with "pernicious consequences for rule of law," the Constitution Project, a civil-liberties group, argued in a brief backing Boeing and General Dynamics. Tuesday's case presents "an opportunity to rethink the privilege for a new era," the group says.
Repeated administrations have used the doctrine to battle lawsuits on the grounds that certain evidence shouldn't be made public on the grounds it endangers national security.
The Obama administration, while repeatedly invoking state secrets, has acknowledged the doctrine can be abused. In September 2009, Attorney General Eric Holder issued guidelines he said would ensure the doctrine is invoked "only when genuine and significant harm to national defense or foreign relations is at stake."
In 1988, General Dynamics and McDonnell-Douglas Corp., which merged with Boeing in 1997, won a $4.8 billion Navy contract to build a new carrier-based stealth fighter, the A-12 Avenger. The program stumbled, in part because the aircraft proved heavier than carriers could handle. In 1991, the Defense Department canceled the program and is seeking a refund of up to nearly $2.9 billion.
The contractors sued the government, contending the project's failure was the Pentagon's fault. Among other claims, they argued the government failed to provide essential information about stealth technology, which they said they needed to make their case in court. The government refused to turn it over, asserting that so doing would endanger national security.
The U.S. Court of Appeals for the Federal Circuit, a specialized court that hears appeals in federal contract disputes, agreed the government could withhold the data under the state-secrets privilege, and the contractors' suit failed. In an appeal, the contractors argued the government should have to pay for invoking the privilege, since it denied them the chance to make their argument in court.
The government says the contractors' position could expose officials to "graymail"—lawsuits that force the government to pay up or endanger national security. "The state-secrets privilege will not serve its vital purposes if the automatic consequence of invoking it is entry of judgment against the government," the Justice Department says.
Boeing, unusually, is on both sides of the state-secrets issue. While challenging the government in the stealth-fighter contract case, the privilege has insulated Boeing from separate allegations that its Jeppesen Dataplan subsidiary helped take detainees to be tortured overseas under a Central Intelligence Agency contract.
"Our position in both cases is that, whether sued by the government or by a private party, we should not be held liable and forced to bear the costs because of the government's decision to assert its own state secrets privilege," said Boeing spokesman John Dern.
Today's state secrets privilege traces to 1953, when the Supreme Court ruled that the government could withhold an accident report from widows whose husbands died in the crash of a B-29 bomber that was testing secret electronic equipment.
"If the court is ultimately satisfied that military secrets are at stake," the plaintiff's need for evidence must yield to national-security interests, Chief Justice Fred Vinson wrote in the case of U.S. v. Reynolds. The crash report, later declassified, said negligence caused the crash and did not contain electronics secrets.
That's partly why James C.N. Paul, who worked on the Reynolds case as a clerk to Chief Justice Vinson, says it's time to put more limits on the state secrets power.
"The privilege can easily be abused," says Mr. Paul, the former dean of Rutgers Law School in Newark, N.J.
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