FRIDAY, OCTOBER 8, 2010
State secrets: Contractors’ easy out
By Laura K. Donohue I
n a 6-to-5 vote last month, the U.S. Court of Appeals for the 9th Circuit dismissed a lawsuit against a company accused of helping the CIA carry out the “extraordinary rendition” of terrorist suspects, transporting them to other countries for interrogation and, the lawsuit alleged, torture. The five men who sued Jeppesen Data-
Plan, a Boeing subsidiary that reportedly provided flight planning and logistical sup- port, could not use even public records to make their case that the company played a key role in the rendition program. The rea- son? The federal government intervened and invoked the “state secrets” doctrine to assert that allowing the lawsuit to proceed would endanger national security. Judge Raymond C. Fisher, writing for the
majority, passed the buck to the other branches of government. In the interests of justice, he said, the executive branch could always make reparations to the five men — or Congress could open an investigation, pass a private bill or introduce remedial legislation. But the judiciary’s hands were tied. Commentary on the ruling has focused on the inability of torture victims to seek redress and the importance of protecting national se- curity. But it has missed the larger problem: What started in 1953 as an executive privilege has become a form of private immunity for a vast range of companies working for the gov- ernment. The government has more contractors
than ever, and they are playing a key role in the national security establishment. Accord- ing to the Congressional Research Service, as of December 2009, the Defense Department had more contractors in Iraq and Afghani- stan (218,000) than uniformed personnel (195,000). That doesn’t count those working for other agencies, such as the State Depart- ment, the U.S. Agency for International De- velopment or, as alleged in Jeppesen’s case, the CIA.
Since the 1953 Supreme Court ruling es- tablishing the privilege, it has been assumed that state secrets would arise in regard to ex- ecutive branch activities only when the gov- ernment chose to assert it. Now, however, corporations are asserting the privilege in their own defense and then lobbying the gov- ernment to intervene on their behalf. Companies may need sensitive materials, which the government holds and is reluctant to make public, to defend themselves. Corpo- rations may threaten to air damaging infor- mation if the government refuses to support their state-secrets claim. Or, where a com- pany provides critical services or supplies, the government may conclude it cannot af- ford to let the lawsuit proceed. So it in- tervenes.
Over the past year, I reviewed hundreds of cases in which a private company asserted or the government invoked the privilege and ei- ther declined to disclose the information re- quested or sought dismissal of the lawsuit. Many of these cases are unpublished or only recently unsealed. Others resulted in volun- tary dismissal. Some remain unresolved. But all show how the mere assertion of state se- crets is a powerful tool in litigation. The privilege has been claimed in a stag-
gering variety of cases — wrongful death, per- sonal injury, negligence, breach of contract, patent disputes, trade secrets, fraud and em- ployment termination — against high-tech- nology companies, private security firms, corporations developing infrastructure, and weapons or aircraft manufacturers. Consider the “friendly fire” death of Lt. Na- than White, a Navy pilot killed by a Patriot missile while patrolling over Iraq in 2003. Initially, the government did not intervene in a lawsuit against Raytheon, the Patriot’s maker. To defend itself, Raytheon requested documents from the Army: reports of the in- ternal investigation of White’s death, com- munications between the government and Raytheon about the strike, information about U.S. missile defense operations, and the Patriot system’s rules of engagement. In September 2008, Army Secretary Peter Ge- ren filed an affidavit asserting that disclosure would threaten national security. The court agreed and concluded that Raytheon couldn’t defend itself without the evidence. It dismissed the case. Lucent Technologies avoided a patent dis- pute over an underwater fiber-optic coupling device when the secretary of the Navy in- voked state secrets. KBR, formerly a subsid- iary of Halliburton, asserted the privilege as an affirmative defense in a lawsuit filed by soldiers alleging they were injured by open- air burning of dangerous chemicals at bases and camps in Iraq and Afghanistan. DynCorp did so as well in a personal-injury lawsuit stemming from its work for the State Depart- ment fumigating coca crops in Colombia. The privilege has even been claimed as a po- tential defense in a lawsuit stemming from a car crash in Baghdad’s Green Zone. CACI International, sued by an Iraqi pris-
oner alleging that he was tortured during in- terrogation at Abu Ghraib prison, also as- serted state secrets. Unlike soldiers, contractors generally are not held accountable under military law. Bi- lateral agreements often exempt them from prosecution overseas. The state-secrets privi- lege then prevents them from being held re- sponsible in civilian courts. Accountability matters. We need laws and procedures to govern not just private mili- tary companies but all companies embedded in our national security infrastructure. The Jeppesen ruling got at least one thing right: If the courts will not act, then the exec- utive branch — and Congress — must.
Laura K. Donohue is an associate professor of law at Georgetown Law Center and author of “The Cost of Counterterrorism: Power, Politics and Liberty.”
SCOTT OLSON/GETTY IMAGES
U.S. Marines stop at a police outpost in Afghanistan’s Helmand province. DAVID IGNATIUS
On Af-Pak mission, hold the optimism
W
hat’s notable about the new White House report on Af- ghanistan and Pakistan sent to Congress this week is its bleak as- sessment of the security picture. You could almost read President Obama between the lines warning the mili- tary: This strategy isn’t working the way we hoped. Don’t ask me for more troops. “The report doesn’t paint an opti- mistic picture of the security situa- tion,” said a White House official. He described the 27-page document as “very candid and very frank.” Gov- ernment officials always say that about reports, but in this case, it’s ac- tually true. You can sense in this report the tension that lies ahead between Oba- ma and his commander in Afghani- stan, Gen. David Petraeus. The mili- tary didn’t write this assessment (one top military leader hadn’t even read it before it was leaked to the Wall Street Journal). The White House knows that Pe-
traeus might offer a somewhat differ- ent account of where things are heading in Afghanistan. “The mili- tary would not dispute that the situa- tion is challenging,” said the White House official. “They’d say, ‘Yeah, it’s bleak, but we’re working full speed on all fronts to get ahead of it.’ ” What drew a front-page headline in the Journal was the report’s dis- cussion of the deteriorating political situation in Pakistan and the refusal of the Pakistani military to mount a new offensive against the Taliban and al-Qaeda in North Waziristan, as the United States wants. “This is as much a political choice as it is a re- flection of an under-resourced mili- tary prioritizing its targets,” the re- port notes, although it concedes that after the devastating floods in Au- gust, the Pakistani military was swamped with relief work. The sharp critique will add a little more fuel to the combustible U.S.- Pakistani relationship. The report describes the “declining popularity” of President Asif Ali Zardari, the plummeting public confidence in his government and the growing percep- tion that Gen. Ashfaq Kiyani, the army chief of staff, is the “lead deci- sion maker” on national security. Reading the Pakistan section, you
can’t help wondering whether a soft coup is taking place: The military (whose popularity is increasing even as that of the politicians declines) is assuming ever-greater responsibility for Pakistan’s welfare, even though it is nominally staying out of politics.
The political impact of the White
House report on the United States lies in the somber discussion of Af- ghanistan. It’s not so much that these are new concerns but that the White House states them so bluntly. Through June 30 in Afghanistan, “progress across the country was un- even.” Despite a ballyhooed offensive in Marjah in February, “projected gains have yet to manifest them- selves fully in Helmand province.” Nationwide, “district-by-district data show that only minor positive change had occurred with respect to security,” and the percentage of Af- ghans who said their security was “bad” in June was the highest since September 2008. The cornerstone of the U.S. strat-
egy — the plan to begin transferring responsibility to Afghan forces start- ing in July 2011 — also looks shaky. The Afghan army and police are ex- panding, but their “operational effec- tiveness is uneven.” An effort to re- cruit more Pashtuns from the south has had “inconclusive” results. A highly touted Afghan army opera- tion in August was botched (“hastily planned, poorly rehearsed”). The bleakest area of all was gov- ernance. The performance of Presi- dent Hamid Karzai’s government was judged “unsatisfactory” throughout the first half of the year. Indeed, public perceptions seemed to be worsening, with fewer people saying in June than in March that the government is moving “in the right direction” and more (still a mi- nority) saying a return to power by the Taliban would be good. Public confidence in Karzai’s actions against corruption fell, from 21.5 per- cent in March to 16.5 percent in June. Petraeus, to be fair, is working to
fix what he can. He argued in a re- cent interview that “only now do we have all the right inputs in place,” with the completion in August of the surge of 30,000 U.S. troops. But this leaves out the most important input of all, which is a reliable partnership with an Afghan government and military to which America could eventually transfer responsibility. That’s still missing. Given the temptations to fudge
the facts, you have to credit the White House for making an inde- pendent evaluation, without the weasel-words that often fill such re- ports. The message is unmistakable: The administration’s Af-Pak strat- egy is not yet producing adequate results.
davidignatius@washpost.com POST PARTISAN
Excerpts from The Post’s opinion blog, updated daily at
washingtonpost.com/postpartisan
JONATHAN CAPEHART
Silencing the Clinton chatter
On Wednesday, the chatter was about a Joe Biden-Hillary Clinton job swap for 2012. On Thursday, it was about the secretary of state’s presi- dential ambitions in 2016. I wish peo- ple would focus on the Democrats in 2010, since a new political landscape might take shape the evening of Nov. 2. But since they’re not focusing, I want to put some things out there for folks to consider — one last time. There are many variables at play in a possible Clinton run in 2016. The mood of the country is one. If it’s any- thing like it is today, any Democrat at the top of the ticket better watch out. The wars in Iraq and Afghanistan should be wound down by then — or not. Age is another variable. Clinton would be 69 at the time of the 2016 general election. This assumes that some Democratic young gun doesn’t come out of nowhere to scuttle her chances of snatching the party’s nomi- nation — again. But the key variable is President Obama’s reelection in 2012. Clinton’s chances of succeeding him four years later diminish greatly if he loses.
A Vice President Clinton isn’t going to happen. But what does have the pos- sibility of coming true is Clinton tak- ing over for Robert Gates at the Penta- gon when he retires next year. Run- ning the Defense Department would put her in charge of concluding the wars in Iraq and Afghanistan. Assum- ing there’s a second Obama term, she would have to then continue to make extremely tough and politically dicey budgetary decisions for the agency. The post could make her long for the simple days of negotiating Middle East peace and trading insults with Iranian President Mahmoud Ahmadinejad. But here’s the flip side. As the civil- ian leader of the military (and assum- ing she does that job as well as she has done her job at State), Clinton would put to rest any question that she has the strength and the right experience to be commander in chief in a 2016 run. She could even reprise that pow- erful “3:00 a.m.” ad that she used to at- tack Obama and his presumed lack of experience on the world stage during the 2008 primaries. In 2016, that ad would be rooted in real decision-making experience — not by osmosis as a former first lady or a former senator. But we’re getting way ahead of ourselves. Unless and until she herself — not some surrogate — says otherwise, my Clinton 2012 and 2016 presidential speculation is over.
KLMNO
R
A19 CHARLES KRAUTHAMMER
for Democrats is that President Oba- ma’s “reelect” number is 38 percent — precisely Bill Clinton’s in October 1994, the eve of the wave election that gave Republicans control of the House for the first time in 40 years. Yet this same poll found that 65 per- cent view Obama favorably “as a per- son.” The current Democratic crisis is not about the man — his alleged lack of empathy, ability to emote, etc., requir- ing remediation with backyard, shirt- sleeved shoulder rubbing with the folks —but about the policies.
And the problem with the policies is
twofold: ideology and effectiveness. First, Obama, abetted by Nancy Pelosi and Harry Reid, tried to take a center- right country to the left. They grossly misread the 2008 election. It was a mandate to fix the economy and restore American confidence. Obama read it as a mandate to change the American so- cial contract, giving it a more European social-democratic stamp, by fundamen- tally extending the reach and power of government in health care, energy, edu- cation, finance and industrial policy. Obama succeeded with health care.
Unfortunately for the Democrats, that and Obama’s other signature achieve- ment — the stimulus — were not exactly what the folks were clamoring for. What they wanted was economic recov- ery. Here the Democrats failed the simple test of effectiveness. The economy is ex- traordinarily weak, unemployment is unacceptably high, and the only sure consequence of the stimulus is nearly $1 trillion added to the national debt in a single stroke. And yet, to these albatrosses of ideo- logical overreach and economic inef- fectiveness, the Democrats have man- aged in the past few weeks to add a third indictment: incompetence. For the first time since modern budg-
eting was introduced with the Budget Act of 1974, the House failed to even write a budget. This in a year of extraor- dinary deficits, rising uncertainty and jittery financial markets. Gold is going through the roof. Confidence in the dol- lar and the American economy is fall- ing — largely because of massive over- hanging debt. Yet no budget emerged from Congress to give guidance, let alone reassurance, about future U.S. revenues and spending. That’s not all. Congress has not
EUGENE ROBINSON
forecasts for November. How unpre- dictable? Well, I’d like to meet the pun- dit or prognosticator who imagined that a major-party candidate for the U.S. Senate would begin a campaign ad by declaring, “I’m not a witch.” Christine O’Donnell’s sorcery prob- lem aside, there’s one thing I can say with confidence about next month’s midterm election: African Americans will vote overwhelmingly for Demo- cratic Party candidates at every level. This is perfectly rational political be- havior — but in many ways it’s a shame. Don’t misunderstand. I’m firmly
convinced that the progressive agenda championed by the Democrats is much better for African Americans, and for the nation as a whole, than the conservative agen- da favored by Re- publicans. But I also believe that in politics, as in busi- ness, competition is good. Monopolies inevitably take their customers for granted. And this, frankly, is what Democrats
An enduring estrangement T
his has been such an unpredict- able political year that it’s hard to have confidence in any of the
The Colbert Democrats A
president’s first midterm election is inevitably a referendum on his two years in office. The bad news
passed a single appropriations bill. To keep the government going, Congress passed a so-called continuing resolu- tion (CR) before adjourning to cam- paign. The problem with continuing to spend at the current level is that the last two years have seen a huge 28 per- cent jump in non-defense discretionary spending. The CR continues this profli- gacy, aggravating an already serious debt problem. As if this were not enough, Congress adjourned without even a vote — nay, without even a Democratic bill — on the expiring Bush tax cuts. This is the ultimate in incompetence. After 20 months of control of the White House and Congress — during which they passed an elaborate, 1,000-page micro- management of every detail of Amer- ican health care — the Democrats ad- journed without being able to tell the country what its tax rates will be on Jan. 1. It’s not just income taxes. It’s capital gains and dividends, too. And the estate tax, which will careen insanely from 0 to 55 percent when the ball drops on Times Square on New Year’s Eve. Nor is this harmless incompetence.
To do this at a time when $2 trillion of capital is sitting on the sidelines be- cause of rising uncertainty — and there is no greater uncertainty than next year’s tax rates — is staggeringly irre- sponsible. As if this display of unseriousness — no budget, no appropriations bills, no tax bill — were not enough, some gen- ius on a House Judiciary subcommittee invites parodist Stephen Colbert to tes- tify as an expert witness on immigra- tion. He then pulls off a nervy mockery of the whole proceedings — my favorite was his request to have his colonoscopy inserted in the Congressional Record — while the chairwoman sits there clue- less. A fitting end for the 111th Congress. But not quite. Colbert will return to the scene of the crime on Oct. 30 as the leader of one of two mock rallies on the Mall. Comedian Jon Stewart leads the other. At a time of near-10 percent un- employment, a difficult and draining war abroad, and widespread disgust with government overreach and in- competence, they will light up the TV screens as the hip face of the new liber- alism — just three days before the elec- tion. I suspect the electorate will declare itself not amused.
letters@charleskrauthammer.com
posed the landmark Civil Rights Act — received just 6 percent of the black vote. This dramatic shift made possible Nixon’s “Southern strategy,” which po- litical strategist Kevin Phillips ex- plained to the New York Times in 1970, using some archaic terminology: “From now on, the Republicans are
Republicans haven’t tried — not seriously, at least — to get a foothold with African American voters.
never going to get more than 10 to 20 percent of the Negro vote and they don’t need any more than that,” Phil- lips said, “but Republicans would be shortsighted if they weakened enforce- ment of the Voting Rights Act. The more Negroes who register as Demo- crats in the South, the sooner the Ne- grophobe whites will quit the Demo- crats and become Republicans. That’s where the votes are. Without that prod- ding from the blacks, the whites will backslide into their old comfortable ar- rangement with the local Demo- crats.” In
other
words, the idea was to capitalize on the racial fears and griev-
have been doing with black voters for decades. As far as African Americans are concerned, the only issue is wheth- er they’ll turn out in substantial num- bers for the midterm balloting. No one wonders how they’ll cast their votes. African American support for the Democratic Party hovers around 90 percent. This qualifies as monolithic, even though black Americans are in- creasingly diverse — economically, so- cially, culturally and geographically. There are millions of affluent black suburban households who fit the dem- ographic profile of independents or Re- publicans. There has been an unprec- edented influx of black immigrants from Africa and the Caribbean who view the political landscape with fresh eyes. Polls show that on some hot- button social issues, such as gay mar- riage, many African Americans are quite conservative. You’d think that somewhere, somehow, the GOP would have managed to get a foothold. The problem is that the Republicans
haven’t tried — not seriously, at least. And it will take a lot more than ap- pointing a figurehead like party chief Michael Steele, or nominating a sur- prising congressional candidate like Tim Scott in South Carolina, to over- come decades of indifference and an- tipathy. The history of the Republican Party’s
estrangement from African Americans is well known. In 1960, Richard Nixon won 32 percent of the black vote. In 1964, Barry Goldwater — who had op-
ances of Southern whites — by letting black voters drift away from the GOP and even encouraging them to stay away.
Ours is a different era, and I’m not
suggesting that the old Southern strat- egy persists in unreconstructed form. The Republican Party’s dominance among white Southerners is not based on the kind of raw, unambiguous race- baiting that we saw decades ago. What I am saying is that the Repub- licans have made no serious effort to appeal to black voters. Such an initia- tive would begin with an acknowl- edgement of the specific problems that African Americans face — including the legacy of centuries of oppression and discrimination — and a proffer of policies to address those problems. But this would contradict the GOP’s dog- matic stance that government should be severely limited in its ambition. Democrats, at least, are much better
at talking the talk. But is the Demo- cratic Party offering any new ideas — or even the promise of meaningful re- sources — to eliminate the stubborn, multigenerational poverty and dys- function in which far too many African Americans are trapped? Are Democrats addressing the vast gap in wealth be- tween middle-class blacks and their white counterparts? Given the stakes, I see no real choice for African Americans but to go to the polls in November and stick with the Democratic Party, which at least asks for our votes. The Republicans haven’t offered an alternative. I wish someday they would.
eugenerobinson@washpost.com
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