Supreme Court can curb abuse of 'state secrets' privilege

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Monday, January 17, 2011; 8:03 PM

IMAGINE STANDING at the plate in a baseball game facing 90-mile-per hour fastballs without a bat because the pitcher says you are not entitled to one. Now picture the umpire ordering the game to continue and calling you out on strikes.

That is essentially the position Boeing and General Dynamics found themselves in during a roughly $3 billion dispute with the federal government.

The government severed an agreement with Boeing and General Dynamics for a stealth naval aircraft after accusing the companies of "defaulting" on the contract. The default determination was important because it meant that the companies had to pay back billions fronted by the government. Had the Defense Department ripped up the contract based on its own "convenience" - a legal term of art in this case - it probably would have owed the companies some $1 billion for unreimbursed expenses.

Boeing and General Dynamics fought back and formally challenged the default in a lawsuit that claimed that many project complications were caused by the government's broken promise to share stealth technology data. But the government invoked the state-secrets doctrine and declared that it could not litigate the case without putting national security at risk. Ultimately, most of the evidence needed by the companies to prove their case was declared off limits. Despite the crippling blow, a federal court found in favor of the government, saddling Boeing and General Dynamics with a multibillion-dollar bill.

The Supreme Court will take up the case on Tuesday and should reverse the result: The government should not have been allowed to prevail when its invocation of state secrets made it impossible for the companies to rebut the allegations. The court should also take this opportunity to refine its earlier pronouncements on state secrets that have led lower court judges to err too much in the government's favor. In recent years, lower courts have often dismissed in the earliest stages lawsuits brought by those who claim to have been tortured or otherwise mistreated in the government's anti-terrorism efforts.

Congress should also renew efforts to pass the State Secrets Protection Act, which would give judges more discretion to privately review information the government claims is too sensitive for public view and would make dismissal of a case a last resort. The government's assertion of state secrets must be taken seriously, and in some cases dismissal might be inevitable. But litigants should be allowed to take their swings.


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