In a box delivered by rolling handcart on the morning of Feb. 26, 2003, the U.S. Supreme Court received 40 copies of a petition so unusual a clerk decided he couldn’t accept it for filing. First, though, he turned through its pages.
In a preliminary statement, he read these words: Three widows stood before this court in 1952. Their husbands had died in the crash of an Air Force plane. The lower courts had awarded them compensation. But the United States was bent on overturning their judgments, and -- to accomplish this -- it committed a fraud not only upon the widows but upon this Court.
Filed by a prominent Philadelphia law firm, this petition asked for an exceedingly rare writ of error coram nobis -- an error committed in proceedings “before us.” The petition’s true author -- at least in spirit -- was a middle-aged woman from Bolton, Mass., named Judy Palya Loether. Her father had perished on that doomed Air Force plane when she was 7 weeks old. For most of her life, he’d been a mystery. She felt certain he would have had an effect, would have contributed to shaping a different Judy, perhaps a better Judy. Instead, she’d had a stepfather who seemed to withhold love. She’d raised a family and served her community, but she’d never lost her sense of wonder about her father, her desire to know him. In time, this impulse drew her into the past. What Judy Palya Loether wanted the Supreme Court to do was fix that past -- to fix its own 50-year-old error.
The clerk read on: At the heart of the case is a set of reports the Air Force prepared on the accident.... The Air Force refused to produce these reports, even to the district judge.... The United States took the case to this Court ... contending that the reports contained “military secrets” so sensitive not even the district court should see them.... This Court took the government at its word, and reversed. But, it turns out that the Air Force’s affidavits were false. The Air Force recently declassified the accident reports. They include nothing approaching a “military secret.” ... In telling the Court otherwise, the Air Force lied.... It is for this Court in exercise of its inherent power to remedy fraud, to put things right.
The clerk didn’t need to puzzle over which long-ago case the petition addressed. Although U.S. vs. Reynolds wasn’t familiar to the public, law students everywhere knew it to be the landmark 1953 ruling that formally established the government’s “state secrets” privilege -- a privilege that has enabled federal agencies to conceal conduct, withhold documents and block troublesome civil litigation, including suits by whistle-blowers and possible victims of discrimination.
U.S. vs. Reynolds’ ramifications reach beyond civil law: By encouraging judicial deference when the government claims national security secrets, it provides a fundamental basis for much of the Bush administration’s response to the Sept. 11 terrorist attacks, including the USA Patriot Act and the handling of terrorist suspects. Although some judges and the Supreme Court may be starting to resist, the “enemy combatants” Yaser Esam Hamdi and Jose Padilla, for many months confined without access to lawyers, have felt the breath of Reynolds. So has the accused terrorist Zacarias Moussaoui when federal prosecutors defied a court order allowing him access to other accused terrorists. So have hundreds of detainees at the U.S. Navy base at Guantanamo Bay, Cuba, held for more than two years without charges or judicial review.
By asking the Supreme Court to “remedy fraud,” Judy Palya Loether and others in the crash victims’ families were taking dead aim at the factual foundation of the state secrets privilege. Long ago, Judy’s mother and two other widows had tried to challenge the power of the federal government. Now here came the families once again.
Two days after their petition arrived at the Supreme Court, the clerk’s office returned all 40 copies to the Philadelphia law firm. Enclosed with the petitions were the firm’s $300 check for the filing fee and a letter explaining that “there are no provisions in the rules of this Court to allow you to file such a document.”
For 48 hours, the law firm and the clerk’s office debated whether the Supreme Court could, in fact, be asked for a writ of error coram nobis. In the end, the clerk’s office advised the firm to resubmit the petition with an attached motion asking the justices, in effect, for leave to file something the clerk thought unacceptable. This time the petition didn’t get sent back.
Judy Palya Loether typed e-mail messages and roamed the Internet. She fielded calls from reporters. She heard from her father’s aging colleagues. She began to imagine that she might prevail. Here, she sensed, was a powerful way to right a wrong. More important, here was a powerful way to find her father. Judy began to feel like Dorothy in the “Wizard of Oz.”
“This whole journey of mine,” she told those around her, “has changed my life.”
Code-Named Project Banshee
As a young girl, Judy Palya Loether thought her father had invented everything. This wasn’t so, she later discovered, but to her, Al Palya could fairly be called a Renaissance man. She knew he’d been born on a farm in northern Minnesota. She knew he could play a mean saxophone and once saved a ship at sea with his ham radio. In family scrapbooks, she found evidence that he’d won a Charleston dance contest. She read reports about the summer he played his sax on a ship cruising to the Orient. She looked at travel films he made in half a dozen of the country’s national parks. Old letters, photographs, clippings -- they told Judy her father was a tournament bridge player, a photographer, a bandleader, a singer, a carpenter. They told her also that he was a genius at making things miniature. That’s how he eventually came to earn a living. First as an engineer at Minneapolis-Honeywell, then, beginning in 1945, at RCA in New Jersey.
His role at RCA mesmerized her. There, at the dawn of the Cold War, he had been assigned to secret experimental work that RCA was doing for the military. In early 1946, RCA contracted to develop a guidance system for pilot-less aircraft, code-named Project Banshee. The goal, in an era before intercontinental missiles, was to launch drone planes that could travel long distances and drop bombs on pinpoint targets. Other engineers thought this notion defied the laws of physics. Judy’s father insisted it could be done. In 1947, he and his team of engineers began testing the Banshee system on board B-29 Superfortresses, the type of plane used to drop the atomic bomb on Hiroshima and Nagasaki.
Poking around, Judy found a letter he wrote that summer to a colleague: All phases at present going smoothly and expect to complete Banshee sometime in October. I had some results on flight tests.... The plane [flies] in the right direction, but the run is by no means a straight line. We have not progressed far enough to determine exactly what the trouble is ...
Other notes showed the deep love shared by Judy’s father and mother. They’d met while Al was studying engineering and playing in a popular dance band at the University of Minnesota. He stood 5-feet-9, weighed 150 pounds, had blue eyes and brown hair. She thought he had a wonderful smile. They married in June 1937 and drove to a Canadian honeymoon in his new red convertible. They had a son, then another son.
By May 1948, after four merit raises at RCA, Palya was earning $6,720, the equivalent today of about $100,000. On Aug. 16 of that year, his third child -- Judy -- was born. In the family archives, she could never find this event mentioned by her father. She found only a photo of her as an infant sitting in her mother’s lap; was her father looking at his daughter through the camera? She could not say. She knew only, from a note he scribbled, that six weeks after her birth, on Oct. 1, he flew to Chicago and spent a weekend with his sister Lillian, talking about the care of their widowed mother. Then, on Monday, he flew to Atlanta.
He was headed to Robins Air Force Base, south of Macon, Ga. They had one final Banshee mission in a B-29 scheduled for Oct. 6. Al Palya didn’t need to ride in the plane but planned to anyway. As usual, he wanted to boost the morale of the technicians who had to handle the daily grind.
In an Instant, a Pilot Without Power
Later, there would be some confusion at Robins as to why the scheduled 8 a.m. takeoff was postponed. The copilot thought a gasket had to be replaced on their B-29. The flight engineer thought the RCA team hadn’t arrived. Whatever the reason, 1 p.m. became the new start time.
Standard procedure called for both crew and civilians to be briefed on emergency measures, but it didn’t happen. Like the initial delay, this lapse would be blamed on the troublesome gasket and the late-arriving engineers. It didn’t seem to matter to the crew. The Air Force personnel, after all, were well-informed, and among the civilians, Judy’s father and Bob Reynolds, a young engineer on his RCA team, were squadron regulars.
Shortly after 1 p.m., 13 men climbed into the B-29’s two pressurized cabins. One cabin was fore and the other aft of the plane’s giant bomb bays. Judy’s father strapped himself into the nose gunner’s position in front of the pilots, the prize seat for sightseeing. Today’s mission was to test the Banshee guidance system on a five-hour round trip between Georgia and Florida.
The survivors of that mission would never forget what happened.
They fired up the engines. Before taxiing out, the flight engineer reported that the No. 2 engine was running a little hot, not uncommon on a B-29. On a power check, the pilot put No. 2 at full throttle with turbo on for about four seconds. He found no loss of power. In these postwar months, airmen at Robins were used to flying with below-par engines, and weren’t likely to scratch a flight because one didn’t perform to specs. “It will clear up,” the pilot told his crew.
He lowered the flaps to 20 degrees and asked if all the men were ready. At 1:28 p.m., the B-29 -- 111,000 pounds, 99 feet long, with four 2,500-horsepower engines on a 141-foot wingspan -- rolled down the Robins runway.
They retracted the landing gear and climbed through light cumulus clouds, with power at a standard 2,400 rpm and 43 inches of manifold air pressure. At 4,000 feet, just as the B-29 cleared the clouds, the flight engineer reported that engines No. 1, 2 and 4 were running warm. This was not unusual, especially in the Georgia heat. The pilot boosted air speed and reduced power to 40 inches of manifold air pressure, which meant the nose went down and air flow increased over the engines.
The plane kept climbing. Then, in an instant, at 18,500 feet, the pilot lost power on engine No. 1. Manifold air pressure inside the engine dropped from 40 to 23 inches. Fuel consumption fell. The pilot asked about other readings. All else normal, the flight engineer advised.
Neither the pilot nor copilot was overly alarmed. They put out their cigarettes, though. A moment later, the pilot advised everybody to strap on a parachute. The civilians scrambled to obey. Eugene Mechler, an engineer with the Franklin Institute, an RCA subcontractor, helped his colleague William Brauner fasten his snaps. Mechler, back behind the bomb bay, could not see Judy’s father in the plane’s nose. He’d later say, “Al had the prize seat for sightseeing, and I had the best seat for escaping.”
At 20,000 feet, the pilot leveled off and reduced power on his three good engines, taking them down to 2,100 rpm and 31 inches of manifold air pressure. He asked the flight engineer to try to raise the pressure manually on No. 1. The engineer worked the emergency amplifier system until he had No. 1 at 31 inches. It wouldn’t hold, though; an instant later, pressure fell back to 23.
Now they knew they had a problem. The B-29 Superfortress had been the most formidable bombing aircraft of World War II, but from the beginning its engines tended to overheat. What’s more, their crankcases were made of magnesium alloy, which is highly flammable. The pilot decided to “feather” No. 1, which meant turning it off after positioning the propeller so it wouldn’t keep rotating in the wind. Looking out his window, he accidentally pushed the button for No. 4 instead.
The copilot, noticing immediately, turned No. 4 back on -- or at least thought he did; No. 4 would later be found in the feathered position. The pilot, meanwhile, pressed the correct button to shut down No. 1. They felt the slight vibration that comes when an engine is turned off in flight.
It was too late. Even before No. 1 stilled, the flight engineer saw the engine access doors turn light brown. Then a crew member scanning the left side reported smoke.
The pilot ordered the flight engineer to trigger the fire extinguisher on No. 1. That seemed to work -- the smoke disappeared. But five seconds later, it came back. This time there was fire too. In an instant, it engulfed the aft half of the engine. Then the entire engine, then the wing area behind the engine. Flames flashed past the left scanner’s window. The whole left wing was on fire.
“Engine No. 1 on fire,” shouted the left scanner, over and over. “Engine No. 1 on fire.”
Judy’s father sat alone in the nose. Al Palya’s view was forward to an empty sky free of flames.
The pilot started a descent. He ordered the cabin depressurized so his crew could open the escape hatches. The civilians tugged at the parachutes on their backs; the crew scrambled for positions.
“What’s wrong with No. 2?” the pilot asked.
Manifold air pressure in No. 2 had dropped to 20 inches. They were in a moderate dive, banking about 20 degrees to the left. The pilot fought the bank, pulling hard to the right, his wheel turned more than 90 degrees.
“Stand by to abandon ship,” he said.
Farther back in the plane, the Franklin engineer Eugene Mechler saw sheets of flame shoot past a window. He couldn’t believe it. He felt safe inside this huge hull. Planes land with an engine on fire all the time, he kept thinking. This pilot will get us down OK. I’d rather stay with the ship than parachute.
The left scanner popped the rear escape hatch. The pilot opened the bomb bay doors. In that instant, the aircraft went into a violent spin to the left, probably caused by drag from the open doors or the damaged left wing. Centrifugal force pinned the crew. It plastered everyone to the floor in piles, one body atop another, unable to move.
The pressure eased slightly, just enough for some of the men to stir. Up front, the copilot stepped toward the forward nose escape hatch. The plane banked, throwing the flight engineer into the hatch. He stuck there, face up in the well, his parachute on his back. The nose gear had extended, but not enough to allow escape. The copilot, standing over him, stuck a foot down and kicked him through. An instant later, the copilot followed, jumping at 15,000 feet.
Farther to the rear, the left scanner blacked out, woke, slid through the bomb bay escape hatch and pulled his rip cord. Eugene Mechler crawled after him, pausing a moment to grab his parachute release handle. As he jumped, he yanked. My gosh, he thought. I pulled it too soon, the chute will foul on the plane.
It didn’t. Mechler slowed as his chute opened. There was the earth, just below him. There too, in the air around him, were the left scanner, the flight engineer and the copilot.
Those four lived. The nine other men did not. The RCA engineer Bob Reynolds and the Franklin engineer William Brauner couldn’t escape the centrifugal force that held them in the rear compartment. Judy’s father managed to leap from the plane -- but he either failed to pull his rip cord or jumped too low.
As they parachuted to the ground, the four survivors heard a puff in the sky and saw falling pieces of metal. It was 2:08 p.m. The B-29 had been airborne for 40 minutes, but would fly no more. Witnesses heard an explosion louder than thunder, more like a bomb. Looking up, they watched the plane disintegrate as it plummeted.
Engine No. 4 came off, then the outer panel of the left wing, then No. 1 and No. 3. All control surfaces, wing flaps and portions of the stabilizers tore loose. The fuselage broke in two at the rear bomb bay. Most of the parts rained down on the Zachry family’s 340-acre cattle farm, just off the dirt Gibbs Street extension, two miles south of Waycross, Ga.
“Well, I can tell you,” Bernard Zachry would report half a century later, “anyone who lives in Waycross remembers it. Biggest thing that ever happened here.”
‘I Regret to Inform’
In his barn, Robert Zachry heard the B-29 explode. He told his 4-year-old son, Michael, to run for the house, then jumped on his quarter horse and rode out to open the gate on Gibbs Street. The authorities, he knew, would need to get onto his land.
Michael was sprinting past the pump house when the plane hit the ground. He dived into the grass, jumped up and started running again. His 6-year-old brother, Bernard, should have been on the school playground but instead was across the street playing cowboys and Indians with his buddy Joey and a girl whom they’d tied to a tree.
Bernard saw it all, the plane falling from the sky, the fire and smoke, the parachutes, one engine knocking over their fence, another landing near the schoolyard. He also saw the school principal shouting at him as she came across the road, a heavyset woman trying to climb a fence to get to the wayward children. Bernard’s mother reached them first. She scooped him up as the principal grabbed Joey. Bernard never could recall anyone untying the girl.
He remembered the crowd that gathered, though. Waycross had some 30,000 citizens then, and a fair share of them were pushing on the Zachry family’s fence. Bernard’s mother tried to keep people from knocking it down. He and his brother watched a man climb over the fence, pick up a severed arm and remove a watch.
Soon sirens filled the air. The local police and the state patrol arrived, then the ambulances, the Red Cross, the military, the reporters and photographers. Uniformed officers from Robins Air Force Base began holding everyone back, including the local cops and firemen. From the B-29’s tail section, a Robins engineer removed the Banshee project’s equipment.
What Bernard and Michael would remember most was the knock on the back door of their home. When they opened it, there stood one of the men -- the left scanner. He had a sprained ankle and appeared shaken. Bernard’s mother took him in, gave him a cup of coffee. His parachute hadn’t opened all the way, he told them. If he hadn’t landed in their gator pond, out near the swamp, he might not have made it.
Searchers found the bodies of the nine who hadn’t survived in and near the wreckage. Three were civilian engineers from RCA and Franklin -- Bob Reynolds, William Brauner and Judy’s father. Al Palya lay by himself, an unopened parachute on his back, free of the aircraft in a field of clover.
Three hours later, a pilot friend knocked on Patricia Reynolds’ door near Robins Air Force Base. “Pat,” he said, “there’s been an accident down at Waycross. We don’t know who survived.”
She was the only widow close enough to get to the crash site. They drove the 90 miles in near silence, Pat lost in thought. Her husband, Bob, hadn’t even been scheduled to fly this day; another engineer had asked if he would cover for him. They were still kids on a honeymoon, he 24, she 20. They’d risen near dawn and walked the hills at 5:30, holding hands. That would be her last memory of him.
In Pennsylvania, William Brauner’s wife, Phyllis, pregnant with her second daughter, also got word. Will and I, she liked to say, did all our arguing before marriage, then never. They had a 4-year-old daughter, Susan, who would never forget sitting on the stairs that day, watching her mother sobbing and rocking until a doctor rushed in with a black bag to sedate her. Susan also would never forget waving goodbye to her daddy the morning he left them. As he turned to wave back, she thought, I’ll never see him again.
In New Jersey, a telegram arrived at the home of Judy and her mother, Elizabeth: I regret to inform that Mr. A. Palya has died due to injuries received in an aircraft accident at Waycross, GA.... The deceased is now at Mincy Funeral Home, 516 Pendleton St., Waycross, GA. Kindly wire collect whether you desire remains to be shipped direct to your home or to a designated funeral home or mortuary, furnishing the name and address of funeral director selected by you to receive remains. Deepest sympathy is extended ...
Betty Palya studied newspaper photos. One featured a solitary body prone on the Waycross farm, covered by a blanket. Her husband had been the only civilian found outside the aircraft; most likely, this was Al. By her side, she had all the letters he wrote as he traveled on business. It’s Saturday, only one week -- 7 days -- till I stand by the railroad tracks waiting for your train.... Honey I can’t start telling you how thrilled I am. Honest I can hardly sit still ...
She’d met him when she came to study with his sister, a friend of hers. Their courtship had lasted three years. Then one day he’d said, “Let’s get married.” She’d tried always to be a good, loving housewife and companion. Now she vowed to be a good and loving single mother to three young children.
She’d still make all their clothes, their draperies, their bedspreads, their slipcovers. She’d still cook big meals each night -- a meat, a potato, a vegetable, a salad, a dessert, the colors varied, not all the same. She’d still set the table with a tablecloth, the glasses placed at the tip of the knives. She’d still make fudge every Friday night, spaghetti with meatballs every Saturday night, the sauce simmering in the kitchen all day. Judy would forever remember those meals, those weekend smells, that resolve by her mother to shelter them from their loss.
Mincy Funeral Home’s bill to prepare and ship Al Palya’s body to New Jersey came to $681.27. On Friday, Oct. 8, his close colleague Walter Frick -- who’d originally been scheduled to fly on the doomed B-29 -- escorted the body home, overwhelmed with sadness about the infant daughter who would never know her father. Services were held the next Monday in Haddon Heights, N.J. They buried Al Palya later that week in Tabor, Minn., where he’d been born and raised. His widow and three children stood by as they lowered his casket into the earth. That afternoon, Judy Palya was two days short of being 2 months old.
A Plane With a Troubled History
At least to the public, the crash of a B-29 flying over Waycross remained a mystery. One newspaper informed citizens only that the “plane was on a secret mission testing secret electronic equipment.... Guards were sent to recover and protect as much of the confidential equipment as possible.” Another report advised that “full details of the plane’s mission were not disclosed, but it was believed that it may have been engaged in cosmic ray research.”
The copilot, through a military spokesman, did describe how one engine caught fire and another lost power before the plane went into a severe spin. The copilot advised reporters, however, that he “could not discuss” the cause of the explosion or how he and the others escaped.
Then, in late November, seven weeks after the crash, RCA Executive Vice President Frank Folsom mailed a typed, four-page, single-spaced letter to Hoyt Vandenberg, commanding general of the Air Force. Folsom, 54, would a year later become the president of RCA. He knew the military: From 1941 to 1943, he’d been chief procurement officer of the U.S. Navy.
He’d also been Al Palya’s and Bob Reynolds’ employer, and indirectly, through the Franklin subcontractor, William Brauner’s as well. From his letter to Vandenberg, it was clear that Folsom, drawing upon inside sources, knew what had happened to his men in the doomed B-29. Despite his restrained tone, he sounded deeply disturbed.
Although we have not received authoritative information from the Air Force regarding the cause of the accident, it appears from available informal information that one of the engines caught fire, followed shortly by a loss of power in a second engine. At about the same time the plane went into a tight spiral.... The resulting centrifugal force prevented escape.... The civilian engineers had received no preflight briefing in emergency bailout procedures.... This particular airplane had a long history of unsatisfactory performance.... We feel that it is probable that there was some confusion among the pilot, copilot and flight engineer ...
Folsom then laid down a not-overly-subtle threat: Steps will be required to assure that our engineers will be willing to assume the unavoidable risks incident to flight tests in military aircraft.... This accident has firmly impressed upon our engineering staff the danger of flying in military aircraft.
Folsom wanted newer, safer planes. He wanted all safety regulations followed. He wanted first-rate flight crews. He wanted “frank and open disclosure of all facts regarding the maintenance and operation of airplanes.” He wanted his own independent inspection of Air Force planes. And, when a crash occurred, he wanted the official accident report.
Folsom’s letter clearly rattled the military command, which depended on RCA’s technical expertise. Copies moved up and down the Air Force hierarchy, at each stop drawing memos directed at others in the chain of command. Most troubling to the military was what Folsom’s letter didn’t say, what Folsom didn’t know. By then, Air Force officers had in hand the official report of their own accident investigation. It not only confirmed Folsom’s charges, it added to them.
The report made clear the doomed B-29 was a problem plane that had spent more time in maintenance than in the air. A crew flying it from Ohio to Florida on June 24, 1947, experienced so many malfunctions during takeoff and initial flight that they turned back after 20 minutes. They landed at Wright Field in Dayton with three engines “on red cross,” which meant the plane was grounded for repairs.
Worse, the Air Force had not complied with several maintenance directives for this B-29 -- including two critical technical orders that addressed the threat of engine fires. The orders, dated May 1, 1947, called for installation of deflector shields to avoid overheating and eliminate a “definite fire hazard.” Because of the technical order “noncompliance,” the accident report advised, the aircraft had been on a cautionary “red diagonal” but had been “released for flight by signing of an exceptional release.” The report concluded: “The aircraft is not considered to have been safe for flight because of noncompliance with [the] technical orders.”
None of this information made it into the reply that the Air Force eventually sent to Frank Folsom. In a letter dated Feb. 17, 1949, some 4 1/2 months after the accident, an assistant vice chief of staff dismissed the RCA executive’s concerns.
“There is no question regarding safety procedures,” Maj. Gen. William McKee advised. “Constant emphasis is placed on this phase of operations.... The Air Force is most anxious to conserve property and life and under no conditions, except extreme emergency, are aircraft permitted to fly when safety is in question.”
McKee assured Folsom that his “personal interest in this matter is deeply appreciated.” He assured also that “every possible action will be taken to maintain full mutual confidence” with civilian contractors. However, “due to the purpose and nature of the Accident Report, it is impossible to furnish copies.”
Three Widows and an Unlikely Lawyer
At age 20, Pat Reynolds returned to Indianapolis and her mother’s home. It was not a time, she would later say, when people readily spoke out against their country. There’d been the Depression, World War II, and then the start of the Cold War. Everyone respected authority. There wasn’t a lot of resistance to anything. “What we knew,” Pat recalled, “was ‘loose lips sink ships.’ ”
Phyllis Brauner sold the family house in Pennsylvania and moved in with her mother, the two buying a home in Wellesley, Mass. Marriage had derailed her education plans, but now she returned to school, aiming to earn a doctorate in chemistry.
Elizabeth Palya remained in New Jersey, collecting $63.34 a month from Social Security and teaching high school home economics to support three young children. As she ran their household -- always doing something -- Judy watched and listened, learning how to shop for fabric, how to beat fudge to a glossy sheen, how to cut the taste of acid in spaghetti sauce.
It was an attorney friend of Phyllis Brauner’s late husband who first suggested they file a lawsuit against the government. By January 1949, Judy’s mother had expressed interest in joining such a claim and sharing a lawyer. In April, they fixed on one: Charles Biddle of Drinker Biddle & Reath in Philadelphia. Judy’s mother sent a check for $50, her share of Biddle’s retainer.
This was an uncommon case for Biddle. He generally was a lawyer to the rich, a well-ensconced member of the establishment. The Biddles, a legendary family of bankers, diplomats, lawyers, politicians and military men, were one of Philadelphia’s first families, there since early in the 19th century, when Nicholas Biddle bought property on the bank of the Delaware River, 13 miles upstream from the city. Nicholas Biddle was the most powerful banker of his time, director of the Second Bank of the United States and a ceaseless combatant with President Andrew Jackson for control of the nation’s currency. At the 123-acre family estate, called Andalusia, his guests included John Quincy Adams, Daniel Webster, the Marquis de Lafayette and Joseph Bonaparte, the former king of Spain.
In Charles Biddle’s time, Andalusia still clung to customs and codes from the Victorian era. The family gathered in coat and tie, even in the heat of summer, for a traditional Sunday dinner of roast beef, rice and peas. Charles traveled to Scotland every year to shoot grouse. His family summered in Maine, loading suitcases, ice boxes, nannies, gardeners, butlers and maids onto two private railroad cars. At his law firm in downtown Philadelphia, most knew Charles as Mr. Biddle. His old-fashioned patrician style -- easy, self-confident, relaxed -- rose from his talents and from his station in life. It masked the mind of a tough litigator. He was a Republican to the core.
None of this, though, was Charles Biddle’s chief claim to fame. Above all else, he was known as a World War I flying ace. As a member of the Lafayette Escadrille, he served in both the French Army Air Force and the American Expeditionary Force. He shot down 11 German planes. In April 1918, while attacking German two-seaters at low altitude behind enemy lines, he was hit, wounded and forced down, but managed, under heavy fire, to dodge his way to an advanced British observation post. He was awarded the Distinguished Service Cross, the Purple Heart, the French Legion of Honor, the Croix de Guerre with three palms, and the Belgian Ordre de Leopold.
Biddle was 59 when the B-29 case came his way in the spring of 1949. Although it wasn’t his custom to represent cash-strapped widows or challenge the government’s high seats of power, he couldn’t resist. What drew him most was the story of a B-29 going down -- and the secrets it held.
On June 21, in federal district court in Philadelphia, he filed the initial complaint, Phyllis Brauner and Elizabeth Palya vs. the United States of America, seeking $300,000 for each widow. He also called Pat Reynolds in Indianapolis. She’d turned down his first invitations to join the lawsuit. At 20, she had no children and wasn’t interested in the money. Even more, she wasn’t interested in immersing herself in this matter; deep denial felt better. Now Biddle, trying again, told her he respected how she felt, but feared she’d jeopardize the other two women’s case if she didn’t get involved.
Biddle’s words brought to mind images of Bob that Pat would remember always. He’d just glowed from the minute she met him. They went to a movie that first night, then sat outside singing an old camp song -- Tell me why the stars do shine -- in perfect two-part harmony, her voice a sultry contralto. They married three months later and headed to Florida on a B-17, Pat in the nose, smuggled aboard -- her first plane ride. RCA had assigned Bob to the Banshee project.
OK, Pat said finally. Sign me up.
This Biddle did, in a second complaint filed on Sept. 27. A month later, the government answered, denying any negligence, claiming it “was in no manner responsible for the accident.”
In January 1950, during the discovery process, Biddle asked government lawyers a critical question: “Have any modifications been prescribed by [the government] for the engines in its B-29 type aircraft to prevent overheating of the engines and/or to reduce the fire hazard in the engines?”
The answer -- from U.S. Atty. Gerald Gleeson and Assistant U.S. Atty. Thomas Curtin -- was as succinct as it was false: “No.”
Soon after, Biddle tried to force the government to produce its official accident report and statements of the three surviving crew members. The government lawyers refused. There was no mention yet of “state secrets” or “national security”; the government claimed only that these documents, arising from the military’s internal investigation, were a “privileged part of the executive files.”
On June 30, after hearing arguments, U.S. District Judge William H. Kirkpatrick delivered his opinion: an unqualified ruling in favor of the three widows. The plaintiffs don’t know why the accident happened, he pointed out. If anyone knows, it’s the government. So the government should hand over the accident report and the statements.
Kirkpatrick had his eye fixed on just what kind of privilege the government was claiming -- and not claiming: “The Government does not here contend that this is a case involving the well recognized common law privilege protecting state secrets.... In effect, the Government claims a new kind of privilege. Its position is that the proceedings should be privileged in order to allow ... free and unhampered self-criticism within the service.... I can find no recognition in the law of the existence of such a privilege.”
The government still refused to produce the accident report. At the end of July, the three widows found a letter in their mailboxes. Biddle was writing with uncommon exasperation.
“To my mind it is perfect nonsense after all these years when B-29s have had accidents all over the world to say that a report on what caused this accident is a secret which should not be disclosed. Obviously, we are not interested in any secret devices which may have been on board but which had nothing to do with causing the accident. And in any event, the answer ... is to let the Court look at the report and if there is anything which should not be made public, the Judge can authorize that it be withheld.... The violent objection to producing [the accident report] on the part of the Air Force naturally makes one suspicious that it may contain some conclusions very unfavorable to the Government’s case.”
The issues crystallized at a rehearing before Kirkpatrick on Aug. 9, 1950, in Washington, D.C. Only now did the government invoke a state secrets privilege. In support of a motion for this rehearing, the Air Force had submitted two sworn affidavits, one signed by Thomas Finletter, the secretary of the Air Force, the other by Reginald Harmon, the Air Force judge advocate general.
The government “further objects to the production of this report,” Finletter declared, “for the reason that the aircraft in question, together with the personnel on board, were engaged in a highly secret mission of the Air Force. The airplane likewise carried confidential equipment and any disclosure of its missions or information concerning its operation ... would not be in the public interest.”
Harmon added: “Such information and findings of the accident investigation board which have been demanded by the plaintiffs cannot be furnished without seriously hampering national security.”
The government’s purpose seemed clear to Biddle. The Department of Justice wasn’t merely resisting a lawsuit filed by three widows; it was intentionally trying to set a far-reaching precedent. While a state secrets privilege existed in common law, it had never been formally recognized by the Supreme Court. Biddle felt sure that his opponents meant to make this a test case. With the Cold War intensifying, so too was the government’s determination to marshal all possible powers.
On the bench, Kirkpatrick held the two affidavits in his hand. He’d been a lieutenant colonel in the Army during World War I, so he understood the needs of the military. He was the chief judge of his district, a Republican appointed by Calvin Coolidge. Something troubled him, though. Are you changing your reason for withholding the accident report? he asked the government lawyers. Does your original reason stand? You’re not now contending that this case involves national security and the state secrets privilege?
We do here contend that, replied the government lawyer, Thomas Curtin. He wanted it emphasized: He was now making a claim of state secrets privilege.
“That claim has been made in other cases,” Kirkpatrick pointed out, “and it has been usually met by submission of the [documents] to the court to determine whether or not it is data which would imperil the safety of the military position of the United States.”
Now their debate drove to the heart of the matter.
Curtin: “We do not believe that is good law. We contend that the findings of the head of the department are binding, and the judiciary cannot waive it.”
Kirkpatrick: “It is an important question. I suppose, just to state a wholly imaginary and rather fantastic case, suppose you had a collision between a mail truck and a taxicab, and the attorney general came in and said that in his opinion discovery in the case would imperil the whole military position of the United States, and so forth. Would the court have to accept that? Is that where this argument leads?”
Curtin: “I think you could interpret it that way.”
Kirkpatrick: “I only want to know where your argument leads.”
Curtin: “Under the statute, we contend it is final.”
Kirkpatrick: “Your argument would lead to the point that I suggested?”
Curtin: “There is no other interpretation. In other words, I say that the executive is the person who must make that determination, not the judiciary.... In this particular case, the executive having made that determination, I submit, sir, it is binding upon the judiciary. You cannot review it or interpret it. That is what it comes down to.”
Kirkpatrick wouldn’t let pass that the government, in midstream, had changed its reason for not producing documents. “Of course,” he said, “there is another fact, that this particular claim of privilege
Two years after the crash, one year after the lawsuit was filed, Curtin now said: “In my [initial] claim, I didn’t even know what the trip was, or what was even on the plane, as a matter of fact.”
“All right,” Kirkpatrick responded. “It is an old controversy.”
He’d made up his mind, though. The next month he issued an amended ruling, ordering the government to produce the documents for him to inspect alone in his chambers. When the government refused, Kirkpatrick entered a judgment by default in favor of Judy’s mother and the other two widows.
They had won round one.
After a trial to determine the value of their husbands’ lives -- defined as their lost earnings -- Kirkpatrick granted Betty Palya and Phyllis Brauner $80,000 each (the equivalent of $622,075 today) and Pat Reynolds $65,000 (the equivalent of $505,397). Relief, if not celebration, filled their households. The three women looked forward to relative financial security. This despite a letter each received a week later from Charles Biddle. “It may be quite some time before anything is collected,” he warned, “for I believe that the Government will in all probability appeal.”
The Highest Court in the Land
The government waited five months. Not until April 1951 did it ask the U.S. 3rd Circuit Court of Appeals to overturn Kirkpatrick’s ruling. Half a year later, on Oct. 19, Biddle and the government attorneys argued their cases before a three-judge appellate panel. On Dec. 11 came the panel’s opinion, written by Judge Albert Maris, a highly regarded jurist and law professor appointed by Franklin D. Roosevelt.
Ruling in favor of the three widows, Maris offered a resounding affirmation of Kirkpatrick’s decision, which he quoted at length. Maris went even further than Kirkpatrick in addressing the critical underlying issues. In words that sound as fresh today as when written, he made plain that he saw clear dangers in what the government sought.
Maris first addressed the government’s claim that disclosure of the accident report would hamper open investigations: “We regard the recognition of such a sweeping privilege as contrary to a sound public policy. 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 ... the privilege against disclosure might gradually be enlarged ... until, as is the case in some nations today, it embraced the whole range of government activities.”
Then Maris turned to the government’s second basis for a claim of privilege -- state secrets. Like Kirkpatrick, he recognized that the government had advanced this argument only belatedly. Also like Kirkpatrick, he found the government’s claim deeply troubling. What bothered him most was the assertion that the executive branch had unilateral power, free of judicial review, to decide what could be kept secret.
Maris pointed out that Kirkpatrick hadn’t ordered any documents to be disclosed; he’d only directed that they be produced for private examination in his chambers. “The Government was thus adequately protected,” Maris wrote. "[But] the Government contends that it is within the sole province of the Secretary of the Air Force to determine whether any privileged material is contained in the documents and that his determination must be accepted by the district court without any independent consideration.... We cannot accede to this proposition.... To hold that the head of an executive department of the Government in a suit to which the United States is a party may conclusively determine the Government’s claim of privilege is to abdicate the judicial function.”
Maris’ conclusion: “The judgments entered in favor of the plaintiffs will be affirmed.”
Round two also had gone to the three widows.
Charles Biddle, of course, knew what was coming. Three months later, the solicitor general filed a petition for a writ of certiorari -- a request for the Supreme Court to hear the case. On April 8, 1952, the Supreme Court agreed to adjudicate what was now known as United States vs. Reynolds Et Al.
From both sides came thick briefs arguing their positions and defining what was at stake. The government gave no quarter. Neither did Biddle. “The basic question here,” he wrote, “is whether those in charge of government departments may refuse to produce documents properly demanded, in a case where the government is a party, simply because the officials think it would be better to keep them secret, and this without the Courts having any power to question.”
Biddle concluded: “The Secretary of the Air Force may not assert he alone shall be the judge of whether his own claim is well founded.... This matter reaches to bedrock.”
In early September 1952, the clerk of the Supreme Court advised the lawyers for both sides that they should be present on Tuesday, Oct. 21, for oral arguments. On that fall day, at 1:30 p.m., Charles Biddle appeared before the court in striped pants, black tie and black frock coat with tails. Each side was allotted one hour for its argument, with a half-hour recess between the two presentations. The judges, another attorney present later reported to Phyllis Brauner, “were quite interested and shot questions at the lawyers arguing the case and one never really was quite certain on whose side their sympathies lay.”
This became clear 4 1/2 months later, on March 9, 1953, when the Supreme Court delivered its opinion in U.S. vs. Reynolds. The government, wrote Chief Justice Fred Vinson for a 6-3 majority, had made a valid claim of privilege against revealing military secrets, a privilege “well established in the law of evidence.” The decisions of the District Court and the Court of Appeals -- of Judge Kirkpatrick and Judge Maris -- were therefore reversed.
By “well established,” the Supreme Court meant that the state secrets privilege was rooted in common law. Now, though, the high court formally recognized it, which made it binding on all courts throughout the nation.
The justices also spelled out a procedure for how the privilege should be applied. The privilege must be asserted by the government, they instructed, and it is not to be lightly invoked. There must be a formal claim lodged by the head of a department only after his personal consideration. The court itself must determine “whether the circumstances are appropriate for the claim of privilege,” and yet do so “without forcing disclosure of the very thing the privilege is designed to protect.”
This last, of course, was the tricky part. To resolve it, Vinson presented a “formula of compromise” that essentially said the government shouldn’t have absolute autonomy, but courts shouldn’t always insist on seeing the documents. You can’t abdicate control over the evidence, Vinson instructed trial judges, but if the government can satisfy you that a reasonable danger to national security exists, you shouldn’t insist upon examining the documents, even alone in chambers.
U.S. vs. Reynolds clearly rose from the context of the times. In 1949, the Soviet Union had staged its first atomic bomb test, and in October 1951 had dropped a bomb from its own version of a B-29. In March 1953, the Cold War was intensifying, the Korean War still waging, McCarthyism spreading. Fourteen weeks later, Julius and Ethel Rosenberg would be executed as spies, the Supreme Court having denied a last-minute stay. Like now, a threat appeared to exist not just overseas but on America’s own shores. Chief Justice Vinson acknowledged all this in a conclusion that could have been written today.
“In the instance we cannot escape judicial notice that this is a time of vigorous preparation for national defense. Experience in the past war has made it common knowledge that air power is one of the most potent weapons in our scheme of defense, and that newly developing electronic devices must be kept secret if their full military advantage is to be exploited in the national interests. On the record before the trial court, it appeared that this accident occurred to a military plane which had gone aloft to test electronic equipment. 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.”
At bottom, Vinson’s opinion represented an act of faith. We must believe the government, he held, when it claims this B-29 accident report would reveal state secrets.
The Supreme Court hadn’t dismissed the case, only remanded it to district court for retrial. In preparation for that, Biddle decided to depose the three surviving crew members -- something he’d resisted earlier, believing the government’s offer of them was a diversionary tactic. On April 29, he reported the result to the three widows: “As I anticipated, they 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.”
None of that mattered. The government, having established the precedent it sought, had little remaining interest in battling the widows. In late June, government attorneys agreed to settle the case for a total of $170,000 -- just $55,000 less than what Kirkpatrick had originally awarded. In exchange for signing “full and final” releases of their claim, Phyllis Brauner received $49,855.55 (the equivalent of $349,926 today), Elizabeth Palya $48,355.55 ($339,398) and Patricia Reynolds $39,288.90 ($275,759). For his legal work, Charles Biddle earned $32,500 ($228,109), a contingency fee of just less than 20%.
Near the end of 1953, Biddle wrote to Phyllis Brauner: “As you know, I hated to settle the case because I thought if we had carried it through to a finish we could have gotten substantially more. However, something might have gone wrong and perhaps it was better to be sure of receiving the amount which you did.”
In other words: The widows got their money, and the government got its privilege.
The next round would be up to Judy Palya Loether.
About This Story
This story is drawn from court records and government reports, as well as interviews over eight months with lawyers, law professors and all central characters. They include Judy Palya Loether, Susan Brauner, Cathy Brauner, Patricia Reynolds Herring, Bernard Zachry, Michael Zachry, Robert Zachry, Wilson M. Brown III, Jeff Almeida and Charles Biddle’s son, James Biddle. Thoughts and emotions attributed to the characters come directly from them.
Descriptions of the crash site and the Zachry farm derive from a visit to Waycross, Ga., and a tour of the farm. Descriptions of Charles Biddle and his ancestral home are drawn from a visit to Andalusia and a tour of the estate provided by James Biddle, who shared family scrapbooks, histories, tapes and his father’s memoir, “The Way of the Eagle.”
The context and impact of U.S. vs. Reynolds are based on law review articles, case files, legal textbooks and interviews with attorneys and professors specializing in national security law, including Jonathan Turley, Kate Martin, Mark Zaid and Peter Raven-Hansen.
Passages that narrate the B-29 crash derive from declassified Air Force documents, including the official accident report (“Report of Special Investigation of Aircraft Accident Involving TB-29-100BW No. 45-21866"); supplementary memos and summaries; statements and sworn testimony by crash survivors Herbert W. Moore Jr. (copilot), Earl W. Murrhee (flight engineer), Walter J. Peny (left scanner) and Eugene Mechler (civilian engineer); statements by witnesses near Waycross, maintenance foremen, investigators and the B-29’s previous flight crew; the crew roster; maintenance reports; weather reports; and diagrams, maps and photos of the crash site. The narration also derives from historical articles about the B-29; newspaper articles published the week of the crash; Eugene Mechler’s letters to Judy Palya Loether; Susan Brauner’s memories; and interviews with Zachry family members.
Passages that chronicle the legal case resulting in U.S. vs. Reynolds are based on the original case file, including the complaint, responses, interrogatories and briefs; the transcript of record stored at the U.S. Supreme Court; the transcript of proceedings before Judge William H. Kirkpatrick on Aug. 9, 1950; the sworn affidavits signed by the secretary of the Air Force and the judge advocate general; the transcript of the trial for damages before Kirkpatrick on Nov. 27, 1950; the Court of Appeals decision by Judge Albert Maris in December 1951; the government’s petition for a writ of certiorari; the briefs filed to the Supreme Court; the Supreme Court decision by Chief Justice Fred Vinson in March 1953; the petition for a writ of error coram nobis filed by Drinker Biddle & Reath in February 2003; the response of the United States filed by the solicitor general in May 2003; and correspondence between Charles Biddle and the three widows.
Descriptions of Project Banshee are drawn from correspondence between Albert Palya and his colleagues; declassified Air Force documents; and a history of Eglin Air Force Base. The portrayal of RCA executive Frank Folsom is based on declassified Air Force documents and Folsom’s original letter to Gen. Hoyt Vandenberg.
Historical newspapers and photos of the principals and of the piece of B-29 wreckage are courtesy of family members; the photo of Chief Justice Fred Vinson is from Associated Press archives; and the photo of attorney Charles Biddle is courtesy of Drinker Biddle & Reath.
Judy Palya Loether climbs into her mother’s attic in search of secrets. What she finds is a key to her own past and the government’s way of hiding facts.
On the Web
For additional photographs and documents, go to latimes.com/B29
Researcher Nona Yates contributed to this report.