Justices debate fairness, not state secrets

Washington Post Staff Writer
Tuesday, January 18, 2011; 8:09 PM

It has been more than 50 years since the Supreme Court addressed the principle of "state secrets" and when the federal government may invoke them. But the justices indicated in an oral argument Tuesday, in a case that hinges on the issue, that they are in no hurry to break their silence.

The dispute between General Dynamics and Boeing on one side and the Defense Department on the other concerns an aircraft contract canceled in the 1990s and as much as $3 billion in taxpayer money.

But the justices signaled that contract law - not whether the government was justified in withholding secret government information that the companies say was vital to completing their task - will be the key to deciding who owes whom.

Some indicated that it might be impossible for the court to assign blame and that it should find a way to split the difference.

"It's the 'go away' principle of our jurisprudence," Justice Antonin Scalia said.

The case involves the Navy's desire for the A-12 Avenger, a state-of-the-art stealth aircraft. General Dynamics and Boeing together won the $4.4 billion contract in 1988. But three years later, then-Defense Secretary Richard B. Cheney pulled the plug, saying that the companies were not delivering and that they needed to return $1.35 billion they had been advanced (with interest, the amount is now about $3 billion).

The companies said the delay was the Navy's fault, because it had not shared the stealth technology that was essential to completing the mission. Lower courts said the companies could not "safely" litigate the case, though, because of the government's claim that it could not provide needed information without endangering national security.

The more modern context for the state secrets principle has been in cases brought by former detainees suing over alleged abuse. Both the George W. Bush and Obama administrations have invoked the principle in shielding the government from civil lawsuits.

Lower courts so far have backed the government, and one appeal is at the Supreme Court awaiting consideration.

But the justices showed no interest in using the current case to look into issues of when the government is justified in invoking national security to deny information. Instead, they focused on whether a fairness principle is at stake.

Scalia and Chief Justice John G. Roberts Jr. were the most outspoken in saying the government was stacking the deck by denying information and then trying to block lawsuits.

Roberts said that was a "pretty convenient rule" for the government. He seconded Scalia's idea that the court should not decide who was at fault.

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