"Claim of Privilege": Trail of "state secrets" followed like an absorbing mystery

"Claim of Privilege: A Mysterious Plane Crash, a Landmark Supreme Court Case, and the Rise of State Secrets"

by Barry Siegel

Harper, 384 pp., $25.95

On Oct. 6, 1948, an Air Force B-29 bomber crashed in a rural field in Waycross, Ga., after suffering a catastrophic engine fire. The plane was loaded with secret navigational equipment, and carried not only an Air Force crew, but three civilian engineers. Only four crew members survived the crash; all of the civilian engineers died.

Their widows filed a lawsuit against the government and sought copies of the Air Force accident investigation report to support their claim. The government, however, refused to disclose it, claiming it would reveal "state secrets" and that producing it would damage "national security."

Sound familiar? It should. This was the landmark case, U.S. v. Reynolds, that established the state-secret doctrine in the Supreme Court that has been invoked with increasing frequency by the Bush administration to cloak its activities in the "war on terror."

The government's argument was rejected by the trial court, which insisted that the government submit the report for examination by the court. But the U.S. Supreme Court reversed that decision, holding that the government could unilaterally withhold relevant material, without any court inspection, upon the assertion of the "state secret" doctrine.

Ironically, as it turned out, the Reynolds case itself never did involve anything even remotely resembling "state secrets." When the accident report was declassified in the 1990s, all it contained was a dry summary of glaring negligence: engine maintenance orders (designed to prevent the fire) that had been ignored, negligent aircraft operation by the pilots, and a failure even to train the civilians on escape procedures or parachute operation.

In early 2000, Judy Palya Loether, whose father had died in the crash, stumbled upon a copy of the declassified Air Force report on the Waycross accident. Reviewing it, she was stunned to discover not only the government negligence, but the false assertion of a "state secret." Outraged, she searched out Susan Brauner, who — like Loether — lost her father in the crash, and an elderly Patricia Reynolds, who lost her husband.

In "Claim of Privilege," Barry Siegel tells the story of the effort to rectify the misleading assertion of the state-secret privilege. Siegel, a Pulitzer Prize-winning correspondent for the Los Angeles Times, unwinds the story like a mystery novel, with vivid writing that deftly illuminates the legal principles without unnecessary legal jargon.

Unfortunately, by the time their lawsuit was filed, national security concerns had again reached fever pitch in the wake of 9/11, and challenges to the government's national-security claims were no more welcome than at the height of the Cold War, when the Reynolds case was decided. The lawsuit to reopen the case was rejected by the trial court and a three-judge Court of Appeals panel that included the soon-to-be-elevated Judge Samuel Alito.

But on another level, the lawsuit achieved a larger goal by revealing the frivolous "national security" claim upon which Reynolds was based. As Seigel notes, "they had never aimed to repeal Reynolds or attack the whole edifice of national security law. They'd wanted only to call out the abuse of trust. ... In so doing, they had changed the terms of the argument. Now when government lawyers waved the Reynolds flag, judges had to consider its genesis."

It's ironic that, at the very time when judicial independence is most needed — at the height of public hysteria, in times of war, and when the nation is challenged with vicious terrorist attacks — our courts appear to fail us most regularly, authorizing Japanese internment during World War II, for example, or condoning overzealous government secrecy during the Cold War (as in Reynolds).

But then, the real guardians of constitutional liberty are not the courts, but vigilant American citizens willing to stand up to challenge their own government. These surviving family members may not have won their day in court, but surely made a larger point and one by far more valuable.

Kevin J. Hamilton is a Seattle lawyer.