The state-secrets privilege has been receiving an enormous amount of attention lately, mainly in connection with the Obama administration's invocation of the privilege in the Jeppesen case. This invocation, which recalled similar ones on the part of the Bush administration, incurred a substantial amount of criticism from civil libertarians and critics of Bush administration detention policies. Obama has also invoked the state-secrets privilege to protect the warrant-less wiretap program from scrutiny. While the administration has made positive noises about narrowing its use of the privilege, actions have yet to match rhetoric.
As it happens, Professor Davida Isaacs and I have a paper coming out in the Summer 2009 Berkeley Technology Law Journal on the use of the state-secrets privilege in litigation on military procurement. Long story short, a small firm named Crater developed a coupler that could conceivably be used to help tap undersea cables. Lucent Technologies developed an interest in the coupler and played around with it for a bit until it decided that the device was, indeed, appropriate for a contract with the Navy. Lucent then, essentially, told Crater to go pound sand.
More after the jump.
--Robert Farley
