Tactical Secrets

[groovedaddy]

At the Supreme Court last week, Justice Antonin Scalia summed up what he and other justices seemed to consider the least bad outcome in a difficult case: “It seems to me you call the game off.”

The game in this case is a multibillion-dollar contract the government made in 1988 with General Dynamics and McDonnell Douglas to build a stealth aircraft, the A-12 Avenger. The issue before the court in General Dynamics Corporation v. United States is whether the government can use the state-secrets privilege to avoid explaining why it wouldn’t share classified technology with them. Two weeks before the companies were supposed to deliver an initial A-12 prototype, they reported it would be delayed a year or more. Six months later, the government canceled the contract, saying the companies had defaulted. The contractors’ primary defense was that the government caused the delay by not sharing information with them, and they insist they should be paid for work done before the contract was ended.

If the court favors the government’s argument, the government will collect $2.9 billion — $1.35 billion it claims it’s owed under the contract, plus 20 years of interest. If the contractors prevail, they will collect $2.6 billion — $1.2 billion to cover “actual costs” plus interest.

It’s not hard to see why Justice Scalia sought what he called “a ‘go away’ principle of jurisprudence,” with no more money changing hands. But that would require ignoring the trouble with the state-secrets privilege.

http://www.nytimes.com/2011/01/25/opinion/25tue2.html?nl=todaysheadlines&emc=tha211