State Secrets Doctrine Helps and Hurts Boeing

Earlier this month, one of our blog entries discussed the fact that the U.S. Court of Appeals for the Ninth Circuit had dismissed a case against a Boeing subsidary that alleged participation in the U.S. government's program of extraordinary rendition and torture of terrorist suspects.  The Boeing companies and the government argued that fact-finding in the case would reveal state secrets relating to the government's war on terrorism.  Now the state secrets doctrine is working against Boeing.  The U.S. government has invoked the doctrine as a defense to a breach of contract claim asserted by Boeing relating to the production of stealth aircraft.  The U.S. Supreme Court announced yesterday that it has accepted certiorari in Boeing Co. v. United States, No. 09-1302. The issue to be decided is whether the Due Process Clause contained in the Fifth Amendment to the U.S. Constitution allows the U.S. government to maintain its contract claim against a party when it invokes the state secrets privilege to completely deny that party a defense to the claim?

(cgb)