The Supreme Court will hear two consolidated cases today concerning the ability of the federal government to invoke the state secrets privilege in court. The court’s ruling could have profound implications for judicial oversight of executive branch actions in a wide range of cases, including those related to torture allegations.
In General Dynamics Corp. v. United States and The Boeing Company v. United States, the federal government terminated defense contracts based on projected scheduling delays, which exposed the contractors to severe penalties. The contractors argued that they breached their contracts because the government failed to provide information that they needed to fulfill their obligations. In response, the government invoked the state secrets privilege and claimed that allowing the contractors to proceed with their defense would expose government secrets to the public. The contractors argue that the government should not be able to win a default judgment against a private party by invoking the state secrets privilege to deprive the party of its defense.
If the Supreme Court allows the government to pick and choose which evidence can be used against it, private citizens will face an unfair playing field. Worse, by allowing the government to assert the privilege so broadly, the Court would continue a pattern of eliminating judicial review of executive branch actions. Judicial oversight over the executive branch is particularly important for ensuring that national security concerns are not allowed to ride roughshod over our nation’s civil liberties.
As the Washington Post describes in an editorial, broad interpretations of the state secrets privilege have already resulted in the early dismissal of lawsuits by those who were tortured as part of the government’s detention and interrogation program, ensuring that officials who authorized torture are not held accountable for their actions. Alliance for Justice has advocated for torture accountability and believes that the lawyers who justified torture must be held responsible.
New York Times - Tactical Secrets
Slate - "Go, Leave, Get Outta Here"