Government remains skilled at keeping secrets.
Although the Obama administration pledged early on to exercise greater care when using the so-called "state secrets privilege" in court, it appears that there has been little meaningful change since the Bush years. Indeed, new research at Georgetown University suggests that the degree of government secrecy in legal cases by both administrations during the last decade may be greater than previously realized.
GU's law center has created a State Secrets Archive, said to be the first such repository of its kind. Prof. Laura Donohue, who heads the project, concludes that we are aware of only "the tip of the iceberg" in legal application of government secrecy.
The very nature of international politics and military maneuvers in the post-9/11 environment, in which covert operations and high-tech methodology are essential, makes the need for secrecy greater than ever. Yet, when applied to legal cases in which the US and its agents are accused of malfeasance, the suspicion remains that many uses of the secrets privilege are more to save face than to save lives.
The doctrine was confirmed by the Supreme Court in a 1953 case involving civilian deaths in the crash of a military plane. The Court upheld the government's right to withhold details about the plane's spying equipment and mission - although when the file was finally released years later, it contained no meaningful military "secrets"; rather, it confirmed government negligence.
Since then, the privilege has been invoked hundreds, perhaps thousands, of times.
What Donohue's research at Georgetown highlights is that about 80 percent of appellate cases in which the privilege is used are never published - nor are many briefs, memoranda and court orders - creating a wide sphere of state-secret invocations that are not considered when evaluating the rule's use.
The GU archive seeks to identify "the range of cases in which it is used, or how parties respond, such as cases where discovery is limited or suits are dropped because of the threatened or actual invocation of state secrets."
In September 2009, Attorney General Eric Holder issued guidelines he said would ensure the doctrine is invoked "only when genuine and significant harm to national defense or foreign relations is at stake." However, Donohue's data show that the Obama administration has used the doctrine with roughly the same frequency as the Bush administration.
"The big surprise is that contractors are using it," Donohue explained. "Contractors have become deeply engaged in our national security infrastructure, and are now privy to a lot of information."
In many instances, military suppliers are relying on what is known as the "government contractor defense," affirmed by the Supreme Court in 1988. One such case involved the crash of a US helicopter in Afghanistan and a subsequent suit by families of the dead and injured that claimed design and manufacturing defects in the craft. The companies prevailed in federal court after invoking the contractor defense - essentially saying, "the government made us do it."
The Supreme Court is currently considering a case in which Boeing and General Dynamics are challenging the government's attempt to use the state secrets privilege to avoid paying fees in a long-running contract dispute. In their brief, the two aerospace companies declared, "the privilege has gone from a relatively obscure doctrine to a centerpiece of the executive branch's litigation strategy," with "pernicious consequences for rule of law."
It is possible, but by no means certain, that the Supreme Court will clarify and streamline the expansion of state-secrets claims. Congress, too, should revisit the proposed State Secret Protection Act of 2009, by which courts would be granted greater powers to evaluate government requests for secrecy before evidence and testimony are excluded.
John Kennedy believed, "The very word secrecy is repugnant in a free and open society."
Just as military power itself is an action of last resort, the state secrets doctrine should be a privilege of last resort.