In State Secrets Case, Justices Ponder Telling Litigants to ‘Go Away’

WASHINGTON — It has been almost 60 years since the Supreme Court last had a hard look at the state secrets privilege, which can allow the government to shut down litigation by invoking national security. In the years since the attacks on Sept. 11, 2001, the government has invoked the privilege frequently to scuttle cases, saying they would frustrate its efforts to combat terrorism.

The privilege was at the center of an argument at the court on Tuesday. But the justices did not seem inclined to use the opportunity to give the lower courts guidance about its contours.

The case arose from a 1988 contract between the Navy and two companies, General Dynamics and McDonnell Douglas, to develop a stealth aircraft called the A-12 Avenger.

Three years later, dissatisfied with the contractors’ progress, the Navy declared them in default and demanded the return of $1.35 billion.

The contractors sued, asking to keep the money and seeking $1.2 billion more. They said their work had been frustrated by the government’s failure to share classified technology. The government disputed that, but would not explain why, invoking the state secrets privilege.

An appeals court repeatedly ruled against the companies, saying at one point that national security interests trumped the companies’ rights under the Constitution’s due-process clause.

There was no dispute during the argument on Tuesday that the government was entitled to invoke the privilege. The question was what should have happened when it did.

Read the rest here.