Due to an ongoing health crisis in the family, blogging will be 'on and off' as time and circumstances permit for the foreseeable future. I also beg your indulgence if I am slow in responding to emails. New posts will appear below this notice.

Tuesday, January 18, 2011

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.

1 comment:

The Archer of the Forest said...

Well, I don't understand exactly what is at issue here. Congress can deny the right to certiorari to the courts on any subject, if Congress has the guts to do it. If the Congress wanted to force the courts to not hear any cases involving national security, they could so constitutionally.