Judge Disqualifies U.S. Attorneys Over Unfair Use of Secrets : Defense: Move is a victory for A-12 jet contractors in their battle with the Navy and a blow to government security procedures.

A federal judge has found that Justice Department attorneys breached national security rules governing stealth technology in their legal battle against a $1.5-billion claim from the contractors on the defunct A-12 attack jet program.

Judge Robert H. Hodges Jr., the Claims Court judge presiding over the dispute, issued an order Thursday disqualifying two senior Justice Department attorneys representing the Navy in the case, the biggest government contracting fracas in U.S. history.

The order represents another blow to the government’s efforts to defend against the civil claims brought by General Dynamics and McDonnell Douglas in 1991. The two contractors contend that the government improperly canceled their contract and wrongly demanded that the firms absorb the cost of the failed program.

In the secrecy dispute, moreover, the companies allege that government lawyers have taken advantage of classified information without having proper clearance.

The judge’s unusual action comes amid a growing debate over whether the government is keeping too many secrets--and maintaining too large an apparatus to control them--in the aftermath of the Cold War. Three federal commissions are working on measures to streamline the bureaucracy and cut back on the billions of secrets the government now holds.

“The Department of Justice uses secrecy in its own political self-interest,” said Steven Aftergood, a government secrecy expert at the Federation of American Scientists. “Secrecy is essentially a fig leaf. The judge was properly outraged when he discovered that.”

A spokesman for the Justice Department--which has claimed to be shielding critical secrets in its defense of the claims--said only that the agency will have “to wait for some further explanation of what (Hodges’ order) means.”

The order consisted of a single sentence in which the judge instructed his clerk, until further notice, not to accept filings made by two Justice Department attorneys: Mary Mitchelson, the lawyer handling the case, and David Cohen, director of the department’s commercial litigation branch.

Justice Department attorneys have long argued that litigating the A-12 claims brought by McDonnell Douglas and General Dynamics would compromise the Pentagon’s huge investment in stealth technology, which allows aircraft to evade detection by radar.

The federal government invoked the State Secrets Act, putting certain information out of bounds in the claims litigation. But before doing so, Hodges concluded last month, the Justice Department’s litigation team had obtained the classified information for themselves.

On Nov. 22, the two contractors asked Hodges to impose sanctions on the government because it had “engaged in misconduct” by obtaining classified information for which the Justice Department attorneys did not have clearance. The companies alleged that the government then used the information to its advantage in litigating the case, which they called a fraud on the court.

Hodges took the allegation seriously. In a telephone conference with the lawyers, he said he was justified in looking into whether “the government’s invocation of the state secrets privilege in this case was fraudulent,” according to a Justice Department filing dated Nov. 24.

In that filing, the department insisted there had “been no security violations by the government that would justify” sanctions and that any classified information the government learned of “violated no court order” or “ethical proscription.”

On Dec. 17, the Justice Department made another filing, saying it regretted creating any confusion about the issue and again stating that it was the agency’s proper role to obtain classified information for its cases.

Hodges rejected those explanations, writing that the agency’s actions were “highly questionable” and that he could not accept the Justice Department’s suggestion that “it intends to commit similar violations in the future if it suits (the department’s) litigation needs.”

The judge warned that the department would have to provide a better rationale for its actions or face “appropriate sanctions” Dec. 23.

Critics have long contended that the government uses secrecy to hide embarrassing mistakes or exercise influence--or simply out of habitual sloppiness.

“The abuse of classification authority is widespread,” Aftergood said. “Secrecy has been abused in the A-12 program and is one of the reasons for its failure.”

In an earlier finding, the judge said the Pentagon erred in ending the contract on punitive terms.