'State Secrets' Privilege Hits Supreme Court

Critics say government abuses privilege aimed at national security

By Matt Cantor,  Newser User

Posted Jan 17, 2011 4:23 PM CST
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(Newser) – The Supreme Court this week will, for the first time in decades, hear a case questioning aspects of the government’s oft-used “state secrets” privilege, USA Today reports. The federal government has used the argument frequently since 9/11, such as in cases of warrantless surveillance and prisoner interrogation; it has allowed the US to keep sensitive information from exposure in court by holding that it would jeopardize national security. But some argue that the government has wielded the state-secrets exemption, first recognized by the Supreme Court in 1953, inappropriately.

This week’s case addresses a 1988 Navy contract that the government terminated amid delays. The US wanted $1 billion back, and invoked state secrets when the contractors took them to court arguing they shouldn't have to repay the money. The contractors argued that in using the state secrets privilege, the US limited their access to documents it needed to prove the delays weren't their fault. Critics say the government shouldn’t be able to use the argument to financial benefit. The US “is trying to use the privilege as a mechanism to take away a contractor's ability to defend itself,” said a lawyer for the contractors. “This is not using it as a shield. This is unquestionably using it as a sword."

In this March 5, 2009, photo, the Supreme Court is seen in Washington.
In this March 5, 2009, photo, the Supreme Court is seen in Washington.   (AP Photo/J. Scott Applewhite)
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