‘Claim of Privilege: A Mysterious Plane Crash, a Landmark Supreme Court Case, and the Rise of State Secrets’ by Barry Siegel

IN LEGAL circles these days, it is much in vogue to praise the doctrine of stare decisis -- a fancy Latin term for giving great deference to past court decisions rather than rethinking legal principles anew. This idea feels quite benign. What could be terribly wrong or dangerous about yielding to the accumulated wisdom of the past?

In “Claim of Privilege: A Mysterious Plane Crash, a Landmark Supreme Court Case, and the Rise of State Secrets,” Pulitzer Prize-winning (and former Los Angeles Times) reporter Barry Siegel shakes us out of this complacency. Past court decisions, he vividly reminds us, sometimes bubble up from a swamp of unexamined lies and exaggerated fears. Yet we invoke them broadly, reflexively and with great potential consequence, as though they automatically deserve our obedience and approbation.

The focus of Siegel’s carefully researched book is the 1953 Supreme Court decision in United States vs. Reynolds, which first enshrined into law the “state secrets privilege.” Under this doctrine, the executive branch may refuse to turn over evidence to individuals suing the United States (and often get the claims dismissed) simply by asserting that release of the information sought after would threaten national security. U.S. Chief Justice Fred Vinson’s opinion, issued at the height of Cold War hyperconcern with national defense, goes so far as to instruct trial judges that, in some circumstances, they should accept the executive branch’s privilege without conducting their own private examination of the documents at issue to test the plausibility of the claim.

As Siegel accurately observes, the Reynolds decision is “an act of faith.” It makes sense if we generally trust executive branch officials to invoke the doctrine only when national security is genuinely at stake and not merely to cover up governmental blunders or protect an administration’s political interests. And therein, Siegel painfully demonstrates, lies the rub.

The Reynolds case arose from the October 1948 crash of a B-29 Superfortress bomber over Waycross, Ga. The plane was on a secret test flight associated with the government’s race to design a long-range guided missile system to bolster its Cold War arsenal. Of the 13 passengers and crew, nine were killed, including three civilian engineers from Radio Corp. of America, who were working on the sophisticated electronics necessary for the enterprise.

The widows of the civilians sued the government under the Federal Tort Claims Act, alleging that their husbands’ deaths had resulted from the government’s negligence and seeking compensation of at least $300,000 apiece (that’s more than $2 million in today’s currency). Represented by the ultra-establishment Philadelphia attorney Charles J. Biddle, the widows naturally sought access to the witness statements and accident reports prepared by government investigators who had flocked en masse to the crash site. The widows had no idea why the military plane had precipitously fallen from the sky -- and these reports were surely the best evidence on the subject.

The government immediately resisted turning over the reports, but not because they contained state secrets. Instead, the U.S. initially claimed that revealing these materials as part of a lawsuit against the government would have a deleterious effect on future inquiries into aviation safety because, in the absence of confidentiality, witnesses and investigators would pull their punches.

It was only after it became apparent to Justice Department officials that this strategy was not likely to succeed -- more than a year into the case -- that they abruptly declared that the witness statements and investigative reports contained national security secrets, that disclosure would endanger the national defense and, most important, that the executive branch’s decision to invoke the state secrets privilege could not be reviewed by the judicial branch.

The lower courts rejected the executive branch’s claim of absolute power: They declared it to be inconsistent with our system of constitutional checks and balances. These courts gave the executive branch a choice: Either turn over the documents to the trial judge for a private assessment of the privilege claim or default on the widows’ lawsuit and pay damages. But the Supreme Court saved the government’s bacon, declaring, in pseudo-Solomonic fashion, that courts should ordinarily (and in the widows’ case) defer to the executive branch’s claim without further inquiry. Deprived of access to key evidence, the widows settled for a modest sum.

As Siegel reveals -- and this is no shock to the cynics among us -- the privilege claim was based on a lie. The suppressed documents, which were declassified in 1996, did not reveal anything about the guided missile program or contain any other national security secrets. Rather, they added to the considerable public information showing the tendency of B-29 engines to catch fire and revealed that the Air Force had failed to install heat shields on the engines of the plane that went down, despite a maintenance order calling for this retrofit. The reports also suggested some potential missteps by the crew after an engine fire put the flight in jeopardy.

In short, the Department of Justice asked the courts and the nation to trust it precisely when it deserved no trust at all. And in a political context heavy with the fear of Soviet spy schemes and international threats, the Supreme Court acquiesced, setting aside the skepticism of the lower court judges closest to the facts of the case.

Siegel tells this story with thorough, appropriate emphasis on the human element. He provides mini-biographies of the renowned attorneys who took up the widows’ quest and the distinguished lower court judges who sought to balance the competing claims of justice and security. Siegel also pays careful attention to an often neglected aspect of legal cases -- the fact that court decisions inevitably provide either comfort or pain, sometimes in great measure, to the individuals involved. Here, as Siegel chronicles, questions unanswered for decades robbed the victims’ families of a fair measure of closure on the deaths of husbands and fathers deeply loved -- not to mention greater financial security that a more appropriate settlement may have provided.

The real power behind Siegel’s book, however, comes from the contemporary backdrop against which we read it. Making claims that executive branch authority may not be reviewed are the Bush administration’s stock in trade. And claims of privilege, including the state secrets privilege, have become a particular favorite for stymieing whistle-blower lawsuits, investigation into potentially unlawful detention, surveillance programs and other problematic aspects of the war on terrorism.

Along these lines, Siegel cites a number of examples of how the Bush administration has invoked Reynolds to get lawsuits thrown out or to limit the rights of accused terrorists. Siegel’s criticism, though largely implicit, is unmistakable. He bristles at what he sees as an all-too-familiar combination of an executive branch bent on avoiding exposure or embarrassment coupled with a judiciary intimidated by claims of an imperiled national interest in a dangerous world.

The point is well taken, but it can also be overstated. Modern judicial history -- from the Pentagon Papers case, to the Nixon tapes case, to the recent Supreme Court decisions rebuking the administration’s claims of exclusive power over “enemy combatants” -- shows that the judicial branch has been far from supine when faced with executive branch overreaching, including unsubstantiated claims of national security.

Moreover, the reluctance of courts to second-guess executive branch judgments about national security is grounded in an important reality. By and large, executive branch officials are, in fact, better suited than isolated judges to determine whether the disclosure of particular information may really pose a national security threat. The shame of the Reynolds case, and the much more comprehensive tragedy of the time in which we now live, is that the executive branch has given us such powerful cause to be reflexively distrustful of any claim to secrecy. Until that changes, except in the most unusual of cases, we are left in the regrettable posture -- to turn an old Reagan phrase -- of being unable to “trust, but verify.” *

Edward Lazarus, a lawyer in private practice, is the author of “Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.”