A military contractor, sued for allegedly selling defective helicopters to the U.S. Army and bringing about the deaths of soldiers in Afghanistan, saw his case dismissed after he invoked what is known as “the state secrets privilege.”
This case is among hundreds of unpublished instances when the state secrets privilege has been used, and for years such invocations went relatively unpublicized.
This week, however, the Georgetown Law Center launched the State Secrets Archives — a major step toward understanding this controversial government maneuver. The new database is considered the first of its kind, currently listing over 160 published and unpublished usages dating back to 2001. The actual secrets that were withheld, however, remain unreleased.
The state secrets privilege is an evidentiary rule that allows the executive branch to withhold documents from legal evidence if their publication could pose a national security threat. The rule gained greater publicity when the Bush administration invoked it after the Sept. 11, 2001 attacks.
Other groups also invoke the rule, which can be particularly concerning, according to associate law professor and acting Director of the Center on National Security Laura Donohue, who has been compiling information for the archive.
“The big surprise is that contractors are using it,” Donohue said. “Contractors have become deeply engaged in our national security infrastructure and are now privy to a lot of information.”
If the evidence withheld is essential to the plaintiff’s case, the suits are often dismissed. Instances of the state secret privilege being invoked include wrongful death, wiretapping and torture, among others.
“There are a number of suits that raise very serious questions,” Donohue said, “and none of these are being litigated because state secrets [privilege] doesn’t allow an alternative.”
Donohue does believe the privilege is conceptually valid, but she calls for either legislative or executive changes to amend its application.
Donohue spent 18 months compiling information about the state secrets privilege. After searching through tens of thousands of legal documents, Donohue published her findings in a Dec. 2011 article in the University of Pennsylvania Law Review titled “The Long Shadow of State Secrets.”
Donohue said she had suspected that published legal information was very incomplete.
“We must only be seeing the tip of the iceberg,” she said. “There must be much more going on here. And it turned out to be true.”
She noted that while some judicial opinions are published, about 80 percent of the appellate court caseload is not. This, as well as briefs, memoranda and court orders, creates a large sphere of state secrets privilege invocations that are often not considered when evaluating the rule’s usage.
The state secrets privilege was formally recognized in a 1953 Supreme Court ruling, but it had been invoked even earlier. Donohue says that there were many usages prior to the Bush era, and she hopes to add them to the archive over time.
Donohue said that the Bush administration did not particularly abuse the rule and only used it when litigation was clearly moving forward. She said the Obama administration has continued to invoke the rule at about the same pace.