Government Contracting and the State Secrets Privilege

Like Meredith Miller, I have recently had the experience ofseeing a new piece of scholarship appear that I had in mind to write myself oneday.  Meredith wanted to write onthe ethics of contract drafting. She has chosen to be philosophical about the fact that Gregory Duhl hasswiped her research agenda.  LauraDonohue (picture) has now done the same to me, and I’m bitter.  Her article, TheShadow of State Secrets, is forthcoming with the University of PennsylvaniaLaw Review (2010).   It’s one of the best articles I neverwrote.  It was #6 on last week’s Top Ten, but it is rising fast and could go all the way to #1.

Although there have been, by Donohue’s count, over 120 lawreview articles published on state secrets since 2001 (the full list will be made available onGeorgetown’s Center for National Security and the Law website), hers is thefirst to take up the vital nexus of contracts and state secrets.  That’s the part of her project thatoverlaps with mine.

However, Donohue’s article is unique in other ways as well,and with respect to these other aspects of Donohue’s work, I am envious ratherthan bitter.  The existing scholarshipon the state secrets privilege (SSP) focuses on published judicialopinions.  As a result of thisnarrow focus, we do not really understand how the SSP works and what its affectis on litigation.  Donohuesystematically searches dockets for further information about the deployment ofthe SSP in early stages of litigation and in litigation that does not result ina published opinion.  The resultsreveal significant problems with existing scholarship on the SSP.

First, we do not really know the mechanisms whereby theprivilege is invoked or who invokes it. Second, we do not know very much about how the SSP affects the course oflitigation in unpublished cases or in stages of published cases that are not addressedin written opinions.  Third, byfocusing on published cases, existing scholarship misses about 80% of evenappellate courts’ caseloads. Finally, existing scholarship treats the SSP has having sprung fullyformed from the head of, not Zeus, but UnitedStates v. Reynolds, 345 U.S. 1 (1953), thus missing a significant portionof the SSP’s history.

Donohue’s research uncovers over 400 SSP cases after Reynolds, a number significantly higherthan earlier research suggested, plus hundreds of other cases in which the SSPplayed a significant role.  Donohuethus intervenes in a debate among scholars about the use of the SSP during theBush administration. Her docket-search method shows that the Bush administration invoked the SSP more often and more aggressively than has previously been appreciated.

Donohue looks at the SSP in the context of four differenttypes of litigation and draws different lessons in each context.  Her first section deals with suitsagainst government contractors who either invoke the SSP or pressure thegovernment to do so.  Next, Donohueanalyzes the 50 cases in which the government has invoked the SSP in connectionwith the National Security Agency’s warrantless wiretapping program.  Third, she addresses a wide range ofcases in which the government has used to SSP to shield itself from potentialliability in connection with violations of the 4^th and 5^thAmendments.  Finally, she claims –and this is shocking – that the SSP has been invoked in the criminal context bycourts when the executive did noteven assert that the SSP applied.

Donohue concludes that the SSP “has become intimatelyconnected to the military-industrial complex, undermining contractualobligations and perverting tort law, creating a form of private indemnity forgovernment contractors in a broad range of areas.”

Outstanding!

[Jeremy Telman]