Inside the Air Force
Copyright Inside Washington Publishers
Reprinted with Permission
March 14, 2003


Case could affect 'state secrets' privilege

by Hampton Stephens

A petition recently filed in the U.S. Supreme Court by the relatives of three men killed in the 1948 crash of a B-29 bomber alleges fraud by Air Force and government officials in a case that set the legal rules for the invocation of the “state secrets” privilege. The government during the last fifty years has repeatedly invoked the privilege to protect evidence from court review, and the Bush administration has used the privilege more often than previous administrations.

The petition, filed last month in Philadelphia, claims the widows of three contractors who were killed in a 1948 research flight near Waycross, GA, were denied a portion of their compensation for the crash after the government refused to release accident reports relating to the case because the documents purportedly contained “military secrets” that could not be viewed by the court. After the government appealed two lower court decisions that were favorable to the widows, the Supreme Court decided in the 1953 case, United States v. Reynolds, to reverse the lower court rulings based in large part on an affidavit signed by then-Air Force Secretary Thomas Finletter and then-service Judge Advocate General Maj. Gen. Reginald Harmon. Because of the reversal, the widows were forced to settle with the government, receiving $50,000 less than the amount that had been awarded in the lower courts, according to the recently filed petition.

When the accident report and other documents relating to the 1948 crash were declassified in 2000 and appeared to contain no secret information, the victims' families contacted the Philadelphia law firm that had represented the widows in the 1953 case, leading to the filing of the petition earlier this year.

Although the petition seeks only compensation for the money previously denied the victims and attorneys fees, and not a reversal of the legal principles that were established in United States v. Reynolds, observers of federal secrecy policy say the case highlights flaws in the way the state secrets privilege is adjudicated.

“The petition comes as a shock because it calls into question a fundamental [decision] that has been [a] precedent for decades,” Steven Aftergood, head of the Federation of American Scientists Project on Government Secrecy told Inside the Air Force March 11. Aftergood reported on the case in his Secrecy News newsletter last week.

Because the Supreme Court could decline to review the petition, and because the petition does not seek a reversal of the finding that affects the state secrets privilege, Aftergood said it is not likely the case will have an immediate effect on the precedent. However, he said the facts have “the potential to influence the conduct of judicial review.”

“In other words, if I were a judge I would worry that this precedent was established on the basis of false affidavits,” Aftergood said. “If you cannot accept government declarations at face value-- that's a subversive finding.”

The case suggests courts should consider adopting a more “probing” and “rigorous” method for determining whether the government is telling the truth when it claims court review of information would damage national security, he added.

The Bush administration, which has adopted more secretive policies in numerous areas since Sept. 11, 2001, has come under fire for invoking the states secrets privilege too often. It has claimed the privilege at least three times, even though experts estimate the privilege has been asserted a total of about two dozen times in the past fifty years.

In a recent case, the Justice Department invoked the privilege in a lawsuit brought by former TRW employee Nira Schwartz in the U.S. District Court in Los Angeles. Schwartz had claimed that TRW falsified test documents in the mid-1990s to show that a key missile defense technology worked even though it could not actually discriminate between missiles and decoys. The court dismissed the case late last month based on government claims that key evidence in the case would endanger national security, according to sister publication Inside Missile Defense.

Sen. Charles Grassley (R-IA) and Rep. Howard Berman (D-CA) recently sent a letter to Attorney General John Ashcroft warning him against misuse of the privilege, especially in cases involving federal whistleblowers. Berman and Grassley coauthored the whistleblower protection law under which Schwartz filed suit.

The 1948 B-29 flight in question in the Reynolds case originated at Robins Air Force Base, GA, and carried 13 men, nine of whom were killed in the crash. The victims included Robert Reynolds, William Brauner and Albert Palya, employees of the Radio Corporation of America, an Air Force contractor. The widows of the three men were the plaintiffs in the 1953 case.

The service claimed in the Finletter and Harmon affidavit that the airplane “carried confidential equipment on board and any disclosure of its mission or information concerning its operation or performance would be prejudicial to this department and would not be in the public interest.” In addition, the affidavit claimed that the accident reports and other documents with which the plaintiffs sought to prove government liability in the mishap contained such secret information.

“Information and findings of the Accident Investigation Board and statements which have been demanded by the plaintiffs cannot be furnished without seriously hampering national security, flying safety and the development of highly technical and secret military equipment,” the affidavit states.

In the majority opinion, the court, having not seen the documents in question, relied on the Air Force affidavit to conclude that “certainly there was a reasonable danger that the accident investigation report would contain references to the secret electronic equipment which was the primary concern of the mission.”

But the recently declassified documents contain nothing of the sort and instead reveal only Air Force fault for the crash, according to the Reynolds petition.

“The materials nowhere describe any part of the 'secret mission.' . . . They do not refer to any 'newly developing electronic devices.' . . . They make no mention of anything that was or should have been confidential,'” the petition states. “Indeed they record nothing beyond the events surrounding the crash and the likely reasons for its occurrence, none of which had anything to do with the purported 'secret mission' of the flight.”

An Inside the Air Force review of the declassified documents, which include accident reports and transcripts of Air Force interviews with the surviving crew members, affirms that they contain no obviously sensitive material. The documents ascribe fault for the crash to the Air Force's failure to comply with orders to modify the B-29's exhaust assembly, the apparent source of the fire that caused the crash. In addition, the service was at fault for failing to brief the civilian contractors that were on the flight in proper emergency procedures, according to the report of the investigation board dated Jan. 3, 1949.

Wilson Brown, the Philadelphia attorney representing the families of Reynolds, Brauner and Palya, told ITAF March 12 that he is awaiting a Supreme Court decision on acceptance of the petition. He said he expects a decision within 10 days.

Brown reiterated that the petition is aimed only at addressing the error of fact that was included in the affidavit, and thereby granting the survivors the damages to which they were originally entitled, not at invalidating the legal rules that were laid down with respect to state secrets. “That's for the next case to decide,” Brown said.

After inflation, the $50,000 denied the widows in 1953 would exceed $1 million in current dollars, he said.

The Justice Department is following the case, a department official told ITAF March 12. The official declined to speculate on the case's potential impact on the state secrets privilege.

“I understand that there have been cases since then” that have affirmed the state secrets privilege precedent, the official said. “It's hard to tell the impact of this one if there is any impact at all.”

The Air Force declined to comment on the merits of the case, saying it is the province of the Justice Department. -- Hampton Stephens