April 5, 2010
Donohue on the State Secrets Doctrine
Laura Donohue (Georgetown University Law Center) has posted The Shadow of State Secrets Doctrine to SSRN.
The shadow of state secrets casts itself longer than previously acknowledged. Between 2001 and 2009 the government asserted state secrets in more than 100 cases, while in scores more litigants appealed to the doctrine in anticipation of government intervention.
Contractor cases ranged from breach of contract, patent disputes, and trade secrets, to fraud and employment termination. Wrongful death, personal injury, and negligence suits kept pace, extending beyond product liability to include infrastructure and services, as well as conduct of war. In excess of fifty telecommunications suits linked to the NSA warrantless wiretapping program emerged 2006-2009, with the government acting, variously, as plaintiff, intervenor, and defendant. In cases stemming from allegations of Fourth and Fifth Amendment violations, torture, environmental degradation, breach of espionage contracts, and defamation, the government defended both the suit and state secrets assertions. The doctrine also played a role in the criminal context.
Collectively, these cases underscore the importance of looking more carefully at how the doctrine actually works. They also suggest the emergence of a new form of “greymail”: companies embedded in the state may threaten to air legally- or politically-damaging information should the government refuse to support their state secrets assertion. And they challenge the dominant paradigm, which tends to cabin state secrets as an evidentiary rule within executive privilege, suggesting in contrast that it has evolved to become a powerful litigation tool, wielded by both private and public actors.