State Secrets and Military Procurement
You’ve probably heard by now about the “state secrets privilege” which is open to all kinds of abuse. So many kinds of abuse, in fact, that Robert Farley and Davida Isaacs appear to have identified a whole new kind of abuse:
As it happens, Professor Davida Isaacs and myself 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. Litigation resulted, and in discovery Crater attempted to gain access to documentation regarding the use of the device. The Navy claimed State Secrets Privilege in order to avoid disclosing such documentation. This eviscerated Crater’s case.
Nice work!
8 Responses to “State Secrets and Military Procurement”
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May 5th, 2009 at 1:52 pm
It is a boneheadedly broad use of the privilege, but the technology in question is not something that should be in the public record. Obviously the plaintiffs know most of the secrets in question, but the threat remains.
Nevertheless, the judiciary has many options which are preferable to invoking the secrets clause. But the Navy is not going to be inclined to leave OPSEC up to a trial judge.
May 5th, 2009 at 2:16 pm
May 5th, 2009 at 2:16 pm
Sounds like not so much military procurement as military expropriation.
May 5th, 2009 at 3:31 pm
I believe the Navy had legitimate grounds for avoiding disclosure. Subsurface intel gathering has long been a sensitive subject, as are the tools of the trade.
This showed up on slashdot four years back, and my take was that “Crater” is/was an independent engineer who elected to sell his idea without the benefit of a business attorney, ie. an idiot.
That said, I posted a screed saying that:
[from an opsec angle] frankly, I’d be shocked if the government program manager didn’t bitch slap his/her counterparts at Lucent for pulling this stunt. Lucent may have underbid the orginal contract, or already run through their contract funding solving technical issues before discovering the “crater coupling”. Regardless, in pushing their costs down the vendor chain by cheating a small sub, they’ve brought undesirable attention to whatever the project is. If the UK/France/FRG/Russia/China et al weren’t targeting it for more research before, they are now.
May 5th, 2009 at 3:33 pm
Good. We shouldn’t reward people who invent technologies to better allow governments to spy on us. Hopefully this will discourage such invention for the future.
May 5th, 2009 at 7:04 pm
After reading the original article it’s plain that Lucent’s lawyers are probably the ones who told them they could do this and get away with it. I suppose that could be construed as unethical behavior.
May 5th, 2009 at 8:50 pm
I think that a top to bottom, independent review of the entire military contracting process is sorely needed. With the virtually untouchable nature of anything military related and the heavy cloud of secrecy that so much contracting operates under, there is a huge opening for massive fraud and criminal behavior.
How many high ranking civilian and military officials “retire” from the military having served in some contracting capacity and then get a cush job with some contractor afterwards?
No department in the Federal Government is subject to less scrutiny than the Pentagon. Time to peel back the curtain a bit and see how much money is being burned on %5000 toilet lids.
May 6th, 2009 at 10:16 am
It’s amazing how many folks here are willing ot suck the Pentagons cock.
If you don’t see something wrong with this, go shoot yourself in the head. You don’t deserve to breathe my air.