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Supreme Court to Consider Cases Involving Invocation of State Secrets

In a 6-to-5 vote last month, a sharply divided U.S. Court of Appeals for the 9th Circuit dismissed a lawsuit against Jeppesen DataPlan, a Boeing subsidiary accused of arranging flights for the Central Intelligence Agency to transfer prisoners to other countries for imprisonment and interrogation, and torture. The five men who sued Jeppesen DataPlan were prevented from using public records to make their case that the company played a key role in the rendition program after the federal government intervened and invoked the “state secrets” doctrine, arguing that allowing the lawsuit to proceed would endanger national security. In the decision, Judge Raymond C. Fisher indicated that the court’s hands were tied, but suggested that the Executive and Legislative branches might be better able to provide some kind of redress to the petitioners through reparations, congressional investigation, or legislation.

The Ninth Circuit’s dismissal in this case highlights the increasing frequency of dismissing cases where the government invokes a state secret. Indeed, the Supreme Court agreed to review a U.S. appeals court ruling, in Boeing Company v. United States, which ruled that the Navy was justified in canceling a $4 billion contract for the A-12 stealth attack aircraft after it encountered major technical difficulties. The case has been consolidated the case with General Dynamics Corp. v. United States. McDonnell Douglas, now owned by Boeing, and General Dynamics were initially awarded the contract in 1988 to build the A-12 Avenger aircraft. When the Defense Department ended the program in 1991, the companies challenged the termination, leading to the present cases. The corporations argued in their appeal that they had been put at an unfair disadvantage when the U.S. government refused to share details of its stealth technology under the state secrets privilege.

The dismissal and reconsideration of these cases suggests a growing tension in how the courts and the Executive will balance national security against individual rights, privacy interests, and due process, as they determine how to invoke doctrine in a variety of difficult contexts.


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