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The state-secrets defense: A privilege too far gone

By Laura K. Donohue
Friday, October 8, 2010; A19

In a 6-to-5 vote last month, the U.S. Court of Appeals for the 9th Circuit dismissed a lawsuit against a company accused of helping the CIA carry out the "extraordinary rendition" of terrorist suspects, transporting them to other countries for interrogation and, the lawsuit alleged, torture.

The five men who sued Jeppesen DataPlan, a Boeing subsidiary that reportedly provided flight planning and logistical support, could not use even public records to make their case that the company played a key role in the rendition program. The reason? The federal government intervened and invoked the "state secrets" doctrine to assert that allowing the lawsuit to proceed would endanger national security.

Judge Raymond C. Fisher, writing for the majority, passed the buck to the other branches of government. In the interests of justice, he said, the executive branch could always make reparations to the five men -- or Congress could open an investigation, pass a private bill or introduce remedial legislation. But the judiciary's hands were tied.

Commentary on the ruling has focused on the inability of torture victims to seek redress and the importance of protecting national security. But it has missed the larger problem: What started in 1953 as an executive privilege has become a form of private immunity for a vast range of companies working for the government.

The government has more contractors than ever, and they are playing a key role in the national security establishment. According to the Congressional Research Service, as of December 2009, the Defense Department had more contractors in Iraq and Afghanistan (218,000) than uniformed personnel (195,000). That doesn't count those working for other agencies, such as the State Department, the U.S. Agency for International Development or, as alleged in Jeppesen's case, the CIA.

Since the 1953 Supreme Court ruling establishing the privilege, it has been assumed that state secrets would arise in regard to executive branch activities only when the government chose to assert it. Now, however, corporations are asserting the privilege in their own defense and then lobbying the government to intervene on their behalf.

Companies may need sensitive materials, which the government holds and is reluctant to make public, to defend themselves. Corporations may threaten to air damaging information if the government refuses to support their state-secrets claim. Or, where a company provides critical services or supplies, the government may conclude it cannot afford to let the lawsuit proceed. So it intervenes.

Over the past year, I reviewed hundreds of cases in which a private company asserted or the government invoked the privilege and either declined to disclose the information requested or sought dismissal of the lawsuit. Many of these cases are unpublished or only recently unsealed. Others resulted in voluntary dismissal. Some remain unresolved. But all show how the mere assertion of state secrets is a powerful tool in litigation.

The privilege has been claimed in a staggering variety of cases -- wrongful death, personal injury, negligence, breach of contract, patent disputes, trade secrets, fraud and employment termination -- against high-technology companies, private security firms, corporations developing infrastructure, and weapons or aircraft manufacturers.

Consider the "friendly fire" death of Lt. Nathan White, a Navy pilot killed by a Patriot missile while patrolling over Iraq in 2003. Initially, the government did not intervene in a lawsuit against Raytheon, the Patriot's maker. To defend itself, Raytheon requested documents from the Army: reports of the internal investigation of White's death, communications between the government and Raytheon about the strike, information about U.S. missile defense operations, and the Patriot system's rules of engagement. In September 2008, Army Secretary Peter Geren filed an affidavit asserting that disclosure would threaten national security. The court agreed and concluded that Raytheon couldn't defend itself without the evidence. It dismissed the case.

Lucent Technologies avoided a patent dispute over an underwater fiber-optic coupling device when the secretary of the Navy invoked state secrets. KBR, formerly a subsidiary of Halliburton, asserted the privilege as an affirmative defense in a lawsuit filed by soldiers alleging they were injured by open-air burning of dangerous chemicals at bases and camps in Iraq and Afghanistan. DynCorp did so as well in a personal-injury lawsuit stemming from its work for the State Department fumigating coca crops in Colombia. The privilege has even been claimed as a potential defense in a lawsuit stemming from a car crash in Baghdad's Green Zone.

CACI International, sued by an Iraqi prisoner alleging that he was tortured during interrogation at Abu Ghraib prison, also asserted state secrets.

Unlike soldiers, contractors generally are not held accountable under military law. Bilateral agreements often exempt them from prosecution overseas. The state-secrets privilege then prevents them from being held responsible in civilian courts.

Accountability matters. We need laws and procedures to govern not just private military companies but all companies embedded in our national security infrastructure.

The Jeppesen ruling got at least one thing right: If the courts will not act, then the executive branch -- and Congress -- must.

Laura K. Donohue is an associate professor of law at Georgetown Law Center and author of "The Cost of Counterterrorism: Power, Politics and Liberty."

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