SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2004, Issue No. 8
January 26, 2004

GOVT DENIES FRAUD IN 1953 STATE SECRETS RULING

U.S. government attorneys last week denied allegations that a 1953 Supreme Court decision which enshrined the concept of the "state secrets privilege" was based on a fraudulent factual foundation.

The Supreme Court decision in question, United States v. Reynolds, provides the legal precedent for the executive branch to assert that there are "military matters which, in the interest of national security, should not be divulged," not even to a federal court.

Survivors and heirs of the original plaintiffs in that 1953 case have recently contended that the government relied on fraudulent national security claims to win the decision.

The Reynolds case originated over half a century ago when the widows of three crew members who died in a 1948 crash of a B-29 Superfortress bomber requested accident reports on the crash. The Air Force denied the request and filed affidavits with the Supreme Court claiming that the withheld reports contained information about the aircraft's secret mission and described secret electronic equipment on board that had to be protected from disclosure. The Court, citing that claim, ruled in favor of the Air Force and established the "state secrets privilege."

But in early 2000, one of the daughters of the deceased crew members acquired newly declassified copies of the documents that the Air Force had withheld and was astonished to find nothing corresponding to what the Air Force affidavits had portrayed.

"Contrary to the statements in the Affidavits, on which the Supreme Court expressly relied, not one of the documents... contain any secret or privileged information," according to a new complaint, filed last October. "The documents consist, instead, of admissions of negligence on the part of the Air Force."

The survivors and heirs of the original Reynolds plaintiffs said that the Court was defrauded by the Air Force and that they were improperly deprived of evidence and compensation to which they were entitled.

Earlier last year, the plaintiffs had petitioned the Supreme Court to reopen the case (Secrecy News, 03/04/03), but the Court rejected the motion to file the petition (SN, 06/24/03).

Consequently, the Reynolds survivors, represented by the same law firm as 50 years ago, filed a new initial complaint in federal district court. See Herring v. United States, filed October 1 in the Eastern District of Pennsylvania, here:

Last week, the government moved to dismiss the case, arguing that the plaintiffs are not qualified to assess the original sensitivity of the now declassified documents.

"The mere fact that the information ... may strike the plaintiffs today as innocuous, trivial, or unimportant, is simply not probative" of whether they were sensitive 50 years ago, the government stated.

Moreover, even if it were true that government witnesses had perjured themselves in the 1953 case, that would not legally constitute a "fraud upon the court," the government said.

See the Defendant's Motion to Dismiss the new complaint, filed January 23, 2004 (35 pages, 780 KB PDF file):

For some, the dispute over the history of the Reynolds case raises very current questions about the extent of judicial deference to the executive branch in matters of national security.

The disclosures of the documents originally denied in 1953 "afford a rare opportunity to compare a government privilege claim with the underlying, allegedly 'secret' information," wrote two attorneys in a recent critique of the matter.

"This comparison highlights the risk of permitting the executive branch to determine, without close judicial scrutiny, whether relevant government information may be withheld from discovery," according to D. Churchill and E. Goldenberg in a paper entitled "Who Will Guard the Guardians? Revisiting the State Secrets Privilege of United States v. Reynolds," published in Federal Contracts Report, vol. 80, no. 11, September 30, 2003.

"Use of the state secrets privilege in courts has grown significantly over the last twenty-five years," note William G. Weaver and Robert M. Pallitto of the University of Texas at El Paso.

And "recent cases indicate that Bush administration lawyers are using the privilege with offhanded abandon," they write in a comprehensive study to be published this year in Political Science Quarterly.

In November 2001 President Bush issued executive order 13233 that would permit former presidents to independently assert the state secrets privilege to bar disclosure of records generated during their tenure.

More than that, the Bush order would make the state secrets privilege hereditary, like some divine right of kings, enabling the heirs of deceased presidents to assert the privilege after their death.

"This is a power heretofore unrecognized either in courts or politics," Weaver and Pallitto observe.

DUTCH INTEL REPORT ON PROLIFERATION

Scientific institutions and private industry in the Netherlands need to be aware of the mechanisms of proliferation of weapons of mass destruction in order to avoid becoming caught up in them, urges a recent report from the Dutch intelligence service AIVD.

The report cites an episode from the nation's own experience: "Dr. A.Q. Khan, the man who calls himself 'the father of the Pakistani atomic bomb,' largely acquired his knowledge through a study and a trainee project in the Netherlands. He concluded his traineeship by stealing technology from his employer."

See "Proliferation of weapons of mass destruction: Risks for companies and scientific institutions," General Intelligence and Security Service of the Netherlands (AIVD), dated July 2003, published December 2003:

INTELLIGENCE AND THE WAR IN BOSNIA 1992-1995

The role of Western intelligence services in the war in Bosnia a decade ago is probed with rigor and insight in a newly reissued book by University of Amsterdam Professor Cees Wiebes.

The author explores in depth the perceptions and interactions of the various intelligence services, the contributions of signals intelligence and satellite imagery, and the evidence of clandestine arms transfers from Iran to Bosnian Muslims.

Based in part on interviews with the principals and the still-classified archives of Dutch security services and the United Nations, it is an unusually impressive addition to the literature of intelligence.

"Intelligence and the War in Bosnia, 1992-1995" by Cees Wiebes was assessed in this January 23 article by Brendan O'Neill, including an interview with the author and a link to the publisher:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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