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

By Barry Siegel HarperCollins Publishers, 2008

Editor’s Note: From time to time, Washington Lawyer will take a point-counterpoint approach when reviewing books that cover important and controversial subject matter.

Review By Ronald Goldfarb

When people think about the term state secrets, or are told documents are classified as a state secret, they envision military plans for troop movements in time of war, clandestine ploys by spies, or surreptitious, back channel diplomatic maneuvering. In fact, most state secret claims pertain to civil matters—tort claims, for example—and not the dramatic, secret shenanigans we have read about in spy novels or seen in World War II movies. The chief reason for the confusion is a little-known case—United States v. Reynolds—decided by the Supreme Court in 1953. Reynolds was a miscarriage of justice that has provided an increasingly pernicious precedent for more than half a century.

In Claim of Privilege: A Mysterious Plane Crash, a Landmark Supreme Court Case, and the Rise of State Secrets, Pulitzer Prize-winning journalist Barry Siegel tells the story of the Reynolds case in absorbing detail. Siegel had the cooperation of the plaintiffs’ attorneys and families, as well as access to their documents, in tracing the history of the case. Just as author Anthony Lewis exposed the inadequate laws providing the right to counsel in Gideon’s Trumpet, one hopes Siegel’s Claim of Privilege will do the same regarding our current undemocratic law of state secrets.

The story begins in 1947. Flight tests known as “Project Banshee” were being conducted by the Air Force in conjunction with civilian engineering experts from Radio Corporation of America. Electronic equipment was being tested. On October 6, 1948, a B-29 Superfortress Air Force bomber exploded and disintegrated over Waycross, Georgia, killing six Air Force crew members and three civilian contract engineers. An Air Force accident report noted maintenance problems, an irregular flight crew, missing protective mechanics, and a lack of briefing on emergency procedures. The widows and offspring of the deceased civilians in the crash sued under the Federal Tort Claims Act of 1946 and retained an estimable Philadelphia attorney, Charles J. Biddle. It was the start, Siegel notes, of “a sluggish march throughout the legal system.” Sluggish and, he might as well have added, fraudulent.

At first the government denied liability, but raised no government secrets defense. It claimed the report was internal “housekeeping.” As the litigation proceeded, it belatedly claimed state secrets were involved and argued that the trial court was bound by the claim: “You cannot review it or interpret it.” The secretary of the Air Force at the time, Thomas K. Finletter, submitted affidavits swearing the pilots were on a secret mission, and that disclosure of the records of the electronic equipment on the flight would hamper national security. The government’s sworn pleadings denied negligence, and officials refused to provide the court with the requested records. The government would not even agree to the trial judge viewing the disputed documents privately in chambers to be able to rule on what turned out to be the government’s bogus and deceitful position.

The judge disagreed, and when the government refused to obey his order to submit the report, he awarded the plaintiffs damages. The government appealed. The appeals court affirmed the award, issuing an opinion on the historic policy that government conduct must be subject to inspection. If not, the appellate judge’s opinion prophetically warned, it is a small step to the government using this defense to avoid embarrassment.

The case went to the Supreme Court. In the intervening years, the government had downgraded the report from “secret” to “restricted,” a level inapplicable to state secrets, but the plaintiffs and the courts were not told. In his presentation of the government’s position, the solicitor general stated to the Court that the accident report contained state secrets. It was the Cold War era—a time of national concern about security—and the Supreme Court opinion, overruling the lower courts, 6–3, took judicial notice that “this is a time of vigorous preparation for national defense.” Chief Justice Frederick Moore Vinson wrote that the Supreme Court is no more entitled to learn real state secrets than any other party to a lawsuit, failing to comprehend that the Court was flying blind and had no knowledge whether the claim was real under the procedure condoned by the majority.

The privilege, the Supreme Court ruled, belongs to the executive branch of government, and though it is “not to be lightly invoked,” the government need not defeat the purpose of that privilege by being required to disclose the very facts deemed necessary to be kept secret. The Supreme Court never reviewed the documents but simply accepted the government’s claim, in effect abdicating its judicial role. As a result, the parties settled the case for a relatively nominal amount.

Years later, in 1996, the documents were declassified—all 220 pages and 15 photographs. Curious about her father’s death, Judith Palya Loether, the now adult daughter of one of the civilian engineers killed in the crash, discovered the accident report on the Internet. It revealed that there were no state secrets, only evidence of government misconduct that would have been embarrassing to the government had it been disclosed. The courts had been misled.

The report, Loether concluded, described “a truly sad and very dark comedy of errors that led to the death of my father and eight other men.” Loether asked, “How could the government lie?” She also wondered: Is this how the government should act when it makes a mistake? “It isn’t about a plane crash,” she said in one interview. “It’s about my country doing the wrong thing.” Neither an expert nor a lawyer, she pleaded before the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties in January 2008 that “Judicial review must be the watchdog that guards against actions by the Executive that chip away at the moral character of this country.”

With the benefit of the report now available, the plaintiffs fought a second legal round in 2003, directly petitioning the Supreme Court under unusual coram nobis procedures. After the motion was rejected by the Court, the claim was sent back to the lower courts a second time as Herring v. United States and faced another defeat. In 2005, the Court of Appeals for the Third Circuit found no fraud in the government’s claim of state secrets privilege. The facts of fraud by the government were clear, but the courts did not want to acknowledge that. It was “like discovering an unfaithful wife after 50 years of marriage,” one legal commentator remarked.

The perverse ruling in Reynolds has often been quoted as the authority for the modern state secret privilege. Perverse because the issue does not come up as often in wartime and diplomatic cases as it does in civil claims of government misconduct, discriminatory employment, and rendition cases, to cite a few examples. An opinion in 2007 noted that the claim of privilege is raised in “the overwhelming majority” of cases involving torts and contract, wrongful death and whistleblower claims, libel, patents, and Resource Conservation and Recovery Act claims. Perverse, too, because if courts do not oversee these claims, there will be no checks to balance the misuse of government power by the executive branch.

The state secrets defense has been used throughout American history by people in power as a pretext to shelter their misconduct. The historic common law state secrets claim was raised infrequently before World War II. In the years after the Reynolds ruling until 2001, the privilege was raised—usually successfully—more than 60 times. In an opinion piece published by the Los Angeles Times in September 2007, Siegel wrote that the Bush administration invoked the privilege 39 times in the previous six years. The Reynolds progeny haunts us today. In January 2008, Senators Edward M. Kennedy (D–Mass.), Patrick Leahy (D–Vt.), and Arlen Specter (R–Pa.) introduced the State Secrets Protection Act, a bill requiring judges to make independent decisions about civil claims of state secrets. The proposed legislation is still pending.

The American people are entitled to know that their public functionaries are acting with fidelity and high standards. That sentiment was first voiced in the 1807 litigation between Aaron Burr and President Thomas Jefferson; it applies no less importantly today as this enlightening book demonstrates.

Ronald Goldfarb is a Washington, D.C., attorney, author, and literary agent whose reviews appear regularly in Washington Lawyer. Reach him at rglawlit@aol.com.

Review By Leonard H. Becker

In Claim of Privilege: A Mysterious Plane Crash, a Landmark Supreme Court Case, and the Rise of State Secrets, Barry Siegel, a Pulitzer Prize-winning journalist and English professor at the University of California, Irvine, recounts the history of United States v. Reynolds, the Supreme Court case that accorded the government a “state secrets” privilege in federal civil litigation. Siegel contends that the Reynolds decision rests on a lie—contrary to the declarations submitted by senior government officials to the judges in the case, no threat to national security was presented in the plaintiffs’ requests for pretrial discovery. He makes a persuasive case for his thesis.

The Reynolds case arose from the crash of a B-29 Superfortress Air Force bomber on October 6, 1948, in Waycross, Georgia. The plane was on a mission to test an experimental electronic system, codenamed “Banshee,” that was to be the Air Force’s answer to intercontinental ballistic missiles—a navigational system that could direct pilotless bombers to enemy targets thousands of miles from the flights’ points of origin. Less than an hour after takeoff, the plane went down after one of its four engines caught fire. Of the 13 civilian passengers and military personnel aboard, nine died; four parachuted to safety.

The timeline in Siegel’s legal narrative is divided into two parts, separated by nearly half a century. The first begins when the families of the three civilians killed in the Waycross crash brought damage actions against the government in 1949 under the Federal Tort Claims Act of 1946. In pretrial discovery, the plaintiffs sought the Air Force’s internal investigative report of the accident. The government resisted, asserting a “housekeeping” claim that confidentiality of such reports was necessary to secure the cooperation of knowledgeable personnel, so that appropriate measures could be taken to avert future accidents. The trial court ordered the government to turn over the report. The government then requested a further hearing, at which it proffered a claim of “state secrets,” submitted by the secretary of the Air Force and buttressed by an affidavit of the agency’s judge advocate general (JAG). The trial judge ordered that the investigative report be provided to him in camera. The government again refused. Subsequently, the court ruled that the plaintiffs should be deemed to have proven negligence on the part of the government, held a damages hearing, and entered judgment in the plaintiffs’ favor. The court of appeals affirmed.

In 1953, the Supreme Court reversed. A six-member majority concluded that under the Federal Tort Claims Act, the case was to proceed in accordance with the Federal Rules of Civil Procedure, including the rules’ provision that discovery could be had as to matters “not privileged.” The Air Force’s assertion that disclosure of information would be harmful to national interest seemed plausible. By analogy to the limited judicial inquiry attendant upon an assertion of the privilege against self-incrimination, the Court concluded that the trial court had erred in ordering the inspection of the Air Force report. The very act of such inspection, according to the Court, might jeopardize the privileged character of the information so disclosed.

Thus, the decision to withhold or produce information allegedly subject to a claim of state secrets was to be made by the executive, without judicial review of the information, so long as the claim seemed reasonable under the circumstances and was proffered by the head of the government department or agency resisting production.

Siegel takes the reader nimbly through this history, adding human touch to the dry legalities by sketching the three widowed plaintiffs, their deceased husbands, and their children (all of them young, some of them not yet born at the time of the crash). He also provides admiring depictions of Judges William H. Kirkpatrick and Albert Maris, respectively, the federal trial judge who ordered the government to produce the investigative report and the Third Circuit judge who wrote the opinion upholding the judgment. Siegel offers a less-than-admirable portrait of Chief Justice Vinson, who wrote the Supreme Court’s opinion. Throughout the exposition, Siegel leaves little doubt where his sympathies lie in this battle of individual right against governmental secrecy.

While the dispute over the Air Force investigative report was pending before the trial court, the government offered to make available for depositions the three military personnel who had survived the Waycross crash, their recollections to be refreshed by the statements they had given to crash investigators. (Siegel does not mention the business about the statements.) For some reason, the plaintiffs spurned the government’s offer. Neither the trial court nor the court of appeals criticized the plaintiffs’ decision. Each thought that a cross-examination of the government’s witnesses, still in military service, would be seriously impaired without the investigative report. Siegel seems to agree with the decision to forego the proffered discovery.

This conclusion is questionable. The plaintiffs’ case on appeal would have been strengthened if they had shown that they had exhausted every available alternative to gaining access to the report. The Supreme Court seized upon the omission in striking the balance between the government’s need for secrecy (as the justices understood it from the Air Force declarations) and the plaintiffs’ need to review the report, a need attenuated, the Court thought, given the options still available to them.

On the remand, the plaintiffs took the three depositions. The plaintiffs’ lawyer thereafter wrote his clients: “As I anticipated, [the deponents] made it quite clear that the secret equipment on board the plane had absolutely nothing to do with the accident and had not even been put into operation.” (Siegel reports that the deposition transcripts could not be found at the plaintiffs’ law firm, not a surprising development considering that some 50-plus years had passed since the crash. It is not clear whether he inquired at the United States Department of Justice.) This testimony would have been a nice morsel to put before the justices on the first go-round, when they weighed the proposition that the government’s assertion of national security should be upheld without judicial review of the document at issue.

In any event, the plaintiffs settled their monetary claims in 1953 for the aggregate sum of $170,000, about 75 percent of the judgment earlier awarded by Judge Kirkpatrick. (Siegel calculates the present value of the settlement to be around $1.3 million.) The Philadelphia law firm took a contingency fee of slightly less than 20 percent. It is interesting that the government paid so much, given that after the Supreme Court’s ruling, the report could be filed away with confidence it would not see the light of day.

The second, and more intriguing, part of the story picks up in 1996, when the Clinton administration declassified Air Force aircraft accident reports through 1955. In 2000 the daughter of one of the civilians killed in the Waycross crash stumbled across a reference to the declassification on the Internet and ordered a copy of the Waycross report. To her amazement, the report was replete with evidence of the Air Force’s negligence in the maintenance and operation of the downed aircraft—information withheld from her mother and the two other widows who had sued for redress nearly 50 years earlier.

The report showed that the pilot, confronted with a fire in Engine No. 1, had inadvertently feathered both that engine and another; that he had gained rather than dropped altitude, thereby subjecting the aircraft to torquing action that forced the plane into an uncontrolled spin; and that the bomb bay doors were lowered as an escape route for the crew at the rear of the aircraft, even though the effect was to create unsustainable drag at the plane’s lowered airspeed. Most damning of all, the report disclosed that the ground crew failed to comply with an Air Force directive to install heat shields in the engines to guard against fires. None of these failings had anything to do with the secret equipment on board the B-29.

Through the daughter’s determination and persistence, the families of the three original plaintiffs united to persuade the Philadelphia law firm that had handled the original case to mount a renewed challenge. The new suit offered the theory that the government had misled the Supreme Court to believe that state secrets were at stake in the Air Force investigative report when in fact there were none. The ensuing legal effort did not succeed, but evidence of government wrongdoing unearthed in the process, according to Siegel, has undermined whatever moral authority the Supreme Court’s decision might have had.

The ultimate irony, Siegel recounts, is that in September 1950, nearly a year after the Air Force abandoned Project Banshee, but while the dispute over the state secrets claim remained pending before Judge Kirkpatrick, the Pentagon had downgraded the classification of the Waycross accident report two tiers, from “secret” to “restricted”—meaning the document now was deemed to be “for official use only, or when disclosure should be limited for reasons of administrative privacy.” Evidently nobody thought to alert the Air Force secretary or the JAG that the Pentagon no longer thought the document’s release “might endanger national security.” The litigation lumbered along, apparently with all participants unaware the reclassification process had eviscerated the support of the government’s case.

As noted at the outset of this review, Siegel makes a persuasive case for the proposition that the government lied to the courts in asserting a claim of state secrets privilege. But a persuasive case, even a compelling one, is not necessarily definitive. Every lawyer knows there are two sides, if not more, to any story. Here we can put to one side the government’s Kafkan argument, advanced on the second round of litigation, that the Air Force secretary’s declaration was not false because it accurately related to the contents of the report in describing the operation of the B-29 aircraft. This argument essentially ignores the point that facts concerning the operation of the plane were not state secrets. Nonetheless, the theory somehow won over the Third Circuit in 2005 when the court of appeals upheld the district court’s dismissal of the plaintiffs’ suit to reopen the case.

Another reading of the secretary’s submission might be that state secrecy inhered in the performance of Project Banshee (which undoubtedly was secret), rather than that of the aircraft. The difficulty with such a reading is that, as Siegel describes it, the unexpurgated Air Force investigative report referred to the electronics project only in passing and did not describe its performance in any way. The government declarants could not have honestly sworn out a claim of state secrecy before Judge Kirkpatrick so far as Banshee’s operational details were concerned. Indeed, when the Philadelphia lawyers for the plaintiffs got their hands on the Waycross report after its declassification, they found it so devoid of secret information that at first they couldn’t believe they had the exact report the government had fought to withhold.

A more substantial challenge to the plaintiffs’ case on the second round—and Siegel’s theory in this book—centers on the question of motive. Why would the secretary of the Air Force and the chief legal officer of that agency have set out to deceive the courts about national security interest in the report? Even in this day of cynical distrust in government, it surpasses credence that senior managers of the Air Force would have cooked up a plan to lie to the courts. Siegel acknowledges that the secretary—Thomas K. Finletter, an attorney from New York with a distinguished career in public service both before and after his tenure with the Air Force—likely relied on the judge advocate general in drafting his personal declaration. The JAG—Major General Reginald C. Harmon—had served as a lawyer on the Air Force staff for nearly a decade at the time of his elevation to the JAG position in 1948 and, according to his obituary in the New York Times, held that post until 1960. (Harmon died in 1992 at the age of 92.) Siegel suggests that the Philadelphia lawyers handling the attempt to reopen the judgment thought that Harmon and his colleagues in the Air Force law department “had nothing to lose, really.” But they had a great deal to lose in the form of public embarrassment, or for Harmon, a criminal charge that he had committed perjury as a sworn witness in a federal court case.

It would have been reasonable for the senior managers at the Air Force to resist disclosure of Project Banshee, including public divulgence of its name. The mere linkage of the name to the fact that electronic equipment so dubbed was aboard a B-29 bomber at the time of the crash might have furnished a lead for a foreign intelligence agency. But this dose of speculation is met by a simple question: Why didn’t the Air Force redact all references to Project Banshee from the investigative report and tender an edited version either to Judge Kirkpatrick or directly to the plaintiffs? And why didn’t any of the 13 judges involved in the case put the question to the government whether it could provide an edited version of the report to the plaintiffs?

Siegel movingly depicts the anguish experienced by the families of the deceased civilian passengers, first at the time of the crash, and again, half a century later when the extent of the government’s concealment became known. Siegel also captures graphically, and in a few pages, the harm done to public interest over ensuing years by the Supreme Court’s decision allowing government agencies to vet their own documents for production, without judicial oversight more searching than a determination of plausibility in the claim to national security.

The state secrets doctrine has metastasized well beyond its beginning point, where it was deployed to shield the government from disclosure in civil actions for money damages brought against it by private plaintiffs. The courts have used the doctrine to dismiss cases where, unlike in Reynolds, the plaintiffs have their evidence ready for trial but the government says it would have to put on state secrets to defend itself; or where one private party sues another, who says he must have access to such secrets; or where a government employee files a claim, such as for employment discrimination, that seems to lie far afield from national security concerns. The tally of cases in which the doctrine has reared its head varies from source to source. Siegel says the government invoked the privilege only five times from the decision in Reynolds until late 1976, and 62 times between 1977 and 2001. According to another count, 23 assertions of the privilege were made in the four years after the 9/11 attacks.

Some judges are beginning to look for ways to escape Reynolds’ smothering embrace. In Hepting v. AT&T,[1] where the plaintiffs challenged the telephone company’s collaboration with the government’s warrantless surveillance program, the government intervened to assert the state secrets privilege, but it failed to persuade the court to dismiss the suit at its inception. Instead, the court ordered the government to tender its documents for an in camera, ex parte review. (The case presumably is mooted by the retroactive immunity accorded compliant telecommunications carriers under the subsequently amended Foreign Intelligence Surveillance Act or FISA.) In In re NSA Telecommunications Records Litigation,[2] the same court held that the FISA statute preempts the executive’s state secrets claim, but nonetheless dismissed the plaintiffs’ FISA claims, with leave to the plaintiffs to amend if they can show they are “aggrieved persons” within the meaning of the statute.

Even better, Congress at last is considering remedial legislation. Under the proposed State Secrets Protection Act, Congress would codify the privilege and its manner of invocation, specifying procedures for meaningful judicial review of the executive claim as well as remedies such as redaction or substituted narrative where the government presents a legitimate concern. The Senate Judiciary Committee reported the bill favorably in April 2008.

In the meantime, we may savor the prescient words of Judge Maris, writing on the government’s appeal from Judge Kirkpatrick’s judgment:

It is but a small step to assert a privilege against any disclosure of records merely because they might prove embarrassing to government officers. Indeed it requires no great flight of imagination to realize that if the Government’s contentions in these cases were affirmed the privilege against disclosure might gradually be enlarged by executive determinations until, as is the case in some nations today, it embraced the whole range of governmental activities.

Siegel commits hyperbole at times (such as in the subtitle of the book, given that there was nothing all that mysterious about the Waycross plane crash). This reader would have welcomed some pictures to illustrate the personalities involved. A diagram of the aircraft and the numbering scheme for the plane’s four engines would have helped. For reasons of dramatic narrative, one might question Siegel’s decision to reveal the secrets of the air crash as part of his description of the crash itself, rather than of the plaintiffs’ belated discovery some 50 years later. His description of the Third Circuit’s reasoning on the second round of litigation is, if anything, overly generous.

Although Siegel does not appear to have endured formal legal training, he writes knowledgeably and clearly about his subject. So far as this reader noted, the author has made only one relatively minor error—confusing briefly the Tort Claims Act with the Rules of Civil Procedure. Thorough annotations at the end of the volume provide evidentiary support throughout, even if the cases cited are not identified in formal legal format. Overall, Siegel has given us a good read on a surprisingly timely topic.

Len Becker served as District of Columbia Bar Counsel from 1992 to 1999 and as general counsel to Mayor Anthony A. Williams from 2003 through 2006. He resides in Washington, D.C., and may be reached at lenbecker@verizon.net.

Notes
[1] Hepting v. AT&T, 439 F. Supp. 974, 979-80 (N.D. Calif. 2006) (Walker, Ch. J.).
[2] In re NSA Telecommunications Records Litigation, MDL Dock. No. 06-1791 (N.D. Calif. July 2, 2008).