The Supreme Court on Monday imposed a slight limitation on the government’s ability to invoke the state secrets privilege in lawsuits that threaten to expose classified, national security information.

It was the court’s second case in as many weeks surrounding the state secrets privilege, which the Supreme Court first recognized in a 1953 McCarthy-era lawsuit. The George W. Bush and Barack Obama administrations have repeatedly asserted the privilege to have lawsuits dismissed surrounding domestic surveillance, kidnapping and torture.

But in the case decided Monday, (.pdf) the unanimous court found that, if the government is going to withhold evidence by citing the privilege, it is not entitled to monetary damages in contractual disputes. The legal flap involved the government and two contractors fighting over a long-ago tabled stealth fighter project.

The justices, without questioning the government’s privilege, ruled it would not be fair for the government to win monetary awards if the government was not required to turn over evidence to the other side.

Before the justices was an appeal by defense contractors Boeing and General Dynamics. The government wanted them to repay more than $3 billion for the scuttled A-12 Avenger stealth fighter program. The government demanded back the money, plus interest, after then-Defense Secretary Dick Cheney claimed in 1991 that the companies were in default on a 1988 contract to build eight of the planes for $4.4 billion.

After seemingly endless legal jockeying, a federal appeals court said the contractors were not entitled to make a defense that the government failed to provide stealth technology that they claimed was essential to the project. The contractors were liable and owed the government the money, a lower court said.

The government, in citing state secrets, maintained that disclosing evidence that would support or refute the contractors’ allegations would threaten national security.

The state-secrets case the justices dealt with last week concerned a lawsuit against a Boeing subsidiary accused of helping the CIA transport detainees to secret foreign prisons where they were allegedly tortured. A lower court had dismissed the suit after the Obama administration cited the state secret privilege. The justices refused to revive the case.

Photo: A-12 Avenger (U.S. Navy)

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