Laura Donohue (Georgetown University Law Center) has posted The Shadow of State Secrets (University of Pennsylvania Law Review, Forthcoming) on SSRN. Here is the abstract:
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Despite the recent explosion in scholarship focused on state secrets, very little is known about how the privilege actually works. This article fills the lacuna, demonstrating that the shadow of state secrets casts itself longer than previously acknowledged. The 2001-2009 period proves illuminating. The article begins with disputes related to government contractors, where breach of contract, patent disputes, trade secrets, fraud, and employment termination cases emerged, proving remarkable in their frequency, length, and range of technologies. Wrongful death, personal injury, and negligence extended beyond product liability to include infrastructure and services, as well as conduct of war. Empirical research suggests a conservative executive branch, more likely to intervene when breach of contract, trade secrets, or patent disputes present themselves, and unlikely - once it asserts the privilege - to back down. Critically, the expansion of the military-industrial complex appears to be giving birth to 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 claim. The government also may depend on a corporation for a key aspect of national defense - thus creating an incentive to protect the company from financial penalties associated with bad behavior. The article next turns to the telecommunications cases that arose out of the NSA’s warrantless wiretapping program. In excess of fifty such suits emerged 2006-2009, with the government acting, variously, as plaintiff, intervenor, and defendant. Although many of these cases ultimately turned on amendments to the Foreign Intelligence Surveillance Act, state secrets assertions grounded on a closely held executive branch jurisprudence played a key role throughout. Following this, the article looks at disputes where the government defended both the suit and state secrets assertions. These cases stem from allegations of Fourth and Fifth Amendment violations, torture, environmental degradation, breach of espionage contracts, and defamation. As in the corporate cases and the telecommunications suits, the executive does not change its course once it asserts the privilege. State secrets also played a role in the criminal context. Remarkably, in two cases, the executive did not even need to assert the privilege; instead, the court simply read it into the case. Collectively, these cases underscore the importance of looking more carefully at how the doctrine works. 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. It also 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. Patent law, contracts, trade secrets, employment law, environmental law, and other substantive legal areas have similarly been affected, even as the executive branch has gained significant and unanticipated advantages over opponents in the course of litigation.
