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Editor: D. A. Jeremy Telman
Valparaiso Univ. Law School

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Monday, April 5, 2010

Government Contracting and the State Secrets Privilege

DonohueLike Meredith Miller, I have recently had the experience of seeing a new piece of scholarship appear that I had in mind to write myself one day.  Meredith wanted to write on the ethics of contract drafting.  She has chosen to be philosophical about the fact that Gregory Duhl has swiped her research agenda.  Laura Donohue (picture) has now done the same to me, and I’m bitter.  Her article, The Shadow of State Secrets, is forthcoming with the University of Pennsylvania Law Review (2010).   It’s one of the best articles I never wrote.  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 law review articles published on state secrets since 2001 (the full list will be made available on Georgetown’s Center for National Security and the Law website), hers is the first to take up the vital nexus of contracts and state secrets.  That’s the part of her project that overlaps 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 rather than bitter.  The existing scholarship on the state secrets privilege (SSP) focuses on published judicial opinions.  As a result of this narrow focus, we do not really understand how the SSP works and what its affect is on litigation.  Donohue systematically searches dockets for further information about the deployment of the SSP in early stages of litigation and in litigation that does not result in a published opinion.  The results reveal significant problems with existing scholarship on the SSP.

First, we do not really know the mechanisms whereby the privilege is invoked or who invokes it.  Second, we do not know very much about how the SSP affects the course of litigation in unpublished cases or in stages of published cases that are not addressed in written opinions.  Third, by focusing on published cases, existing scholarship misses about 80% of even appellate courts’ caseloads.  Finally, existing scholarship treats the SSP has having sprung fully formed from the head of, not Zeus, but United States v. Reynolds, 345 U.S. 1 (1953), thus missing a significant portion of the SSP’s history.

Donohue’s research uncovers over 400 SSP cases after Reynolds, a number significantly higher than earlier research suggested, plus hundreds of other cases in which the SSP played a significant role.  Donohue thus intervenes in a debate among scholars about the use of the SSP during the Bush 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 different types of litigation and draws different lessons in each context.  Her first section deals with suits against government contractors who either invoke the SSP or pressure the government to do so.  Next, Donohue analyzes the 50 cases in which the government has invoked the SSP in connection with the National Security Agency’s warrantless wiretapping program.  Third, she addresses a wide range of cases in which the government has used to SSP to shield itself from potential liability in connection with violations of the 4th and 5th Amendments.  Finally, she claims – and this is shocking – that the SSP has been invoked in the criminal context by courts when the executive did not even assert that the SSP applied.

Donohue concludes that the SSP “has become intimately connected to the military-industrial complex, undermining contractual obligations and perverting tort law, creating a form of private indemnity for government contractors in a broad range of areas.”

Outstanding!

[Jeremy Telman]

 

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