state secrets privilege

General Dynamics Corp. v. United States; Boeing Company v. United States

Issues

Can the government maintain a suit against a party while simultaneously seeking to prohibit that party from raising a defense that could lead to the disclosure of state secrets that might harm national security?

 

In 1988, the United States Navy contracted with McDonnell Douglas and General Dynamics Corporation to build stealth aircraft. In 1991, the Navy discontinued the stealth aircraft program and terminated the contract. McDonnell Douglas and General Dynamics sued in the Court of Federal Claims, alleging that delays in the building of the aircraft were due to the government's failure to share information. The United States asserted the state secrets privilege, claiming that disclosure of this information would harm national security. The Federal Circuit ruled in favor of the United States, holding that the government could assert its termination claim against the contractors and invoke the state secrets privilege to preclude the contractors' defense. The Boeing Company (which merged with McDonnell Douglas during the litigation) and General Dynamics appealed, arguing that the government cannot maintain a claim against a party when it invokes the state secrets privilege to preclude that party from raising a defense in a civil case where the government is the moving party. The contractors also claimed the invocation of the privilege violates the Due Process Clause of the Fifth Amendment. The Supreme Court's decision will affect the use of the state secrets privilege to protect national security and the right of private litigants to assert defenses against government claims.

Questions as Framed for the Court by the Parties

General Dynamics Corp.

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.

Boeing Company

Whether the Due Process Clause of the Fifth Amendment permits the government to maintain a claim while simultaneously asserting the state secrets privilege to bar presentation of a prima facie valid defense to that claim.

In 1988, the United States government contracted with McDonnell Douglas Corporation (“McDonnell Douglas”) and General Dynamics Corporation (“General Dynamics”), two defense contractors. See McDonnell Douglas Corp. v. United States, 567 F.3d 1340, 1342 (Fed. Cir.

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Edited by

Additional Resources

· Bloomberg, Greg Stohr: Boeing, General Dynamics Get High Court Hearing in Stealth-Fighter Dispute (Sep. 28, 2010)

· Constitutional Law Prof Blog, Steven D. Schwinn: Court to Consider a More Ordinary State Secrets Privilege (Sep. 29, 2010)

· Lewis & Clark Law Review, Carrie Newton Lyons: The State Secrets Privilege: Expanding its Scope Through Government Misuse

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United States v. Zubaydah

Issues

When applying the state secrets privilege, should a court defer to the government’s assessment of the national security risks involved or conduct an independent judicial review?

This case asks the Supreme Court to weigh national security concerns against the need for transparency and accountability when applying the state secrets privilege, a common-law privilege permitting classified information to be protected from discovery. Petitioner the United States argues that the utmost deference is owed to government officials in matters of national security. Respondent Zubaydah argues, however, that courts should review the evidence independently to separate state secrets from non-privileged information. The outcome of this case carries significant implications for judicial transparency, the separation of powers, and civil liberties.

Questions as Framed for the Court by the Parties

Whether the U.S. Court of Appeals for the Ninth Circuit erred when it rejected the United States’ assertion of the state secrets privilege based on the court’s own assessment of potential harms to the national security, and required discovery to proceed further under 28 U.S.C. § 1782(a) against former Central Intelligence Agency contractors on matters concerning alleged clandestine CIA activities.

Following the terrorist attacks on September 11, 2001, the Central Intelligence Agency (“CIA”) sought to obtain intelligence on terrorist activities by developing a secret network of overseas black sites where detainees of the War on Terror were subjected to “enhanced interrogation techniques.” Husayn v. Mitchell at 1125–1127.

Acknowledgments

The authors would like to thank Professor Joseph Margulies for his guidance and insights into this case.

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