There were days, growing up in her family’s New Jersey home, when the attic beckoned to Judy Palya Loether.
That’s where her mother had stored every mention of Judy’s late father. Elizabeth Palya had no time for grieving or falling apart after her husband died in 1948. She remarried three years later, and after that didn’t even leave photos around the house. She didn’t talk much about Judy’s father, either. Once on Veterans Day, Judy asked whether her dad was a veteran.
“In a way,” her mom said.
Judy knew only that Al Palya had died in the crash of an Air Force B-29 in Waycross, Ga. She knew there’d been a lawsuit and thought they’d won. She carried deep pride about her father, a vision of a fabulous person. Whenever people did talk about him, they went on about his genius, his enthusiasm, how he was a great musician, a carpenter, a photographer.
Judy’s family still lived in Haddon Heights. Her stepfather, William Sacker, was a butcher. Her mom taught home economics and carried herself with a brave grace that drew admiration from all who knew her. They had a Dutch Colonial house on a quiet street with a big backyard. Upstairs in the detached garage, Judy’s brothers, six and ten years older, made booby-trapped forts while she practiced birdcalls -- oy-oh-oit -- with the boy next door. In those days, Judy didn’t know what she was missing, not having her father. There was always a daddy in the house, after all. She wasn’t aware of loss.
Yet one of Judy’s childhood friends sensed something. Susan White felt there was an “elephant in the closet” at Judy’s house. She believed that the elephant was Judy’s father. One afternoon, she and Judy visited the attic. Only with great reluctance did Judy point out her father’s things.
In time, the family moved to Cherry Hill, N.J. Judy’s mom and stepfather now had their own daughter. Judy became aware that this new sister, six years younger, had a different last name. Later, she came to feel that in her stepdad’s eyes, she and her two brothers weren’t the same as his own daughter. How hard is it, she wondered, at least to pretend you love your kids equally?
At 20, Judy married a computer specialist and left for Illinois, then Spain, then Massachusetts. In 1975, when she was 27, she gave birth to her first son. Loving her own child brought to mind her father. She began to grasp what she’d been missing.
Judy bore a second son. With her boys, she spent more and more time at her mother’s house. They’d go in the summer and on vacations. During those stays, Judy often found herself climbing up to the attic. It was a cool, comfortable place to visit. One morning, she opened a trunk full of costumes and other neat stuff. By nature, she liked to put things in order, so she set to work.
Soon enough, she came across newspaper articles about her father. She read them all. She also looked through her dad’s notebooks, which were full of arcane diagrams, computations and terms. She found most of them incomprehensible. Shoran. Rheostat. Banshee. What did they signify? It depended on how much you wanted to figure out, Judy reasoned.
She knew so little then. She didn’t know the courts had awarded her mother and two other widows compensation after government lawyers refused to turn over an accident report about the fatal B-29 crash. She didn’t know the U.S. Supreme Court had reversed those judgments in 1953, after government lawyers declared that the accident report contained “military secrets” so sensitive not even judges should see them. She didn’t know this Supreme Court ruling, U.S. vs. Reynolds, had formally established the government’s “state secrets” privilege -- a privilege that a growing number of legal experts had come to believe was based on a falsehood.
Judy Palya Loether knew only that she’d lost her father when she was 7 weeks old. He was a mystery to her. Who would she be now if she’d had him, if she’d had a daddy who loved her and made her feel like his darling girl? Sifting through documents in her mother’s attic, she sought connection to her father. It had not yet occurred to her to ask the Supreme Court to correct a decades-old error. She was trying only to find her own past.
On occasion, in that cool, quiet attic, she held up certain documents, the ones stamped “secret.” That’s what truly fascinated her: the word secret.
Government’s ‘Absolute Privilege’
To this day, U.S. vs. Reynolds represents the Supreme Court’s only substantive examination of the state secrets privilege. Law professors consider Reynolds the judicial foundation of national security law.
On paper, Reynolds offered what many consider to be a reasonable compromise between the public’s right to information and the government’s need to keep secrets. How that compromise came to be applied is what troubles a number of lawyers and legal experts. Their objections often echo the concerns voiced half a century ago by William Kirkpatrick and Albert Maris, the trial and appellate judges who, in finding for the three widows, declared it “contrary to sound public policy” to let the government decide what could be kept secret.
In the end, critics maintain, Reynolds put judges in the position of ruling blindly, without knowing the contents of requested documents. Amid such uncertainty, government lawyers found it hard to resist invoking state secrets in all sorts of cases. To some opponents, the impulse to protect military secrets began to look like the impulse to cover up mistakes, avoid embarrassment and gain insulation from liability.
What was meant as a shield to protect national security, plaintiffs’ lawyers started complaining, now was being used as a sword to kill litigation. At the least, one law professor observed, the interests of the administration in power sometimes seemed to get confused with the interests of the nation.
The use of Reynolds started slowly but grew: The government invoked the state secrets privilege only five times between 1953 and 1970, then 50 times between 1970 and 1994. The current Bush administration has formally invoked it at least three times.
The scope of what constitutes a state secret has also expanded, from military technology to all sorts of domestic intelligence operations. Even unclassified information has become subject to national security claims. Government lawyers argue that judges can’t see the whole picture, can’t tell when separate pieces of seemingly innocuous information might be gathered into a revealing “mosaic.”
Over the years, the types of information protected by the state secrets privilege have included: alleged collusion between defense contractors; alleged malfeasance and incompetence by contractors; alleged civil rights violations by the FBI and CIA; the purchase, insurance and inspection records of a government mail truck involved in an accident; and an FBI file on a sixth-grade boy who received a large amount of mail from foreign countries because he was writing an encyclopedia of the world as a school project.
In 1975, a group of Vietnam War protesters claimed the FBI and CIA conducted intelligence operations against them, but they had to drop the lawsuit after a district court upheld the government’s state secrets claim. In 1990, families of 37 crew members killed when Iraqi missiles struck the frigate Stark sued contractors responsible for the ship’s antimissile system, but the United States again successfully invoked the state secrets privilege. In 2000, a similar claim of privilege stopped a gender discrimination lawsuit filed by a CIA employee. In early 2003, yet another claim killed a suit filed by a senior engineer who’d maintained that a defense contractor had submitted false test results on an antimissile vehicle.
Although these types of claims have multiplied, such direct invocations of the state secrets privilege are by no means the broadest legacy of Reynolds. Far more often, Reynolds is simply cited or referred to in courtroom arguments and legal briefs, producing what George Washington University law professor Peter Raven-Hansen calls an “atmospheric effect.” By waving the Reynolds flag in the background, government lawyers have learned they can often gain a degree of judicial deference, especially since the 9/11 terrorist attacks.
Such deference allowed them to confine the “enemy combatants” Yaser Esam Hamdi and Jose Padilla for months without access to lawyers. It encouraged them to keep accused terrorist Zacarias Moussaoui from contacting other accused terrorists. And it permitted them to hold hundreds of detainees without charges or judicial review at the U.S. Navy base at Guantanamo Bay, Cuba.
A handful of judges have started to question the Bush administration’s claim to this type of unilateral power, and the Supreme Court will weigh in soon. Judicial deference, though, is still what lawyers and professors point to as the greatest consequence of Reynolds. Faced with ominous claims about national security, judges today, as in 1953, often find it hard to deny the government.
What the Department of Justice sought 50 years ago, it now has firmly in hand. Atty. Gen. John Ashcroft did not reply when Sen. Charles E. Grassley (R-Iowa) and Rep. Howard L. Berman (D-North Hollywood) wrote him in late 2002 to express concern about abuse of the state secrets privilege. As it happens, just seven weeks earlier he had invoked it again, in a case involving an FBI whistle-blower who’d alleged defects in the agency’s translation program.
“To prevent disclosure of certain classified and sensitive national security information,” a Department of Justice news release advised, “Attorney General Ashcroft asserted the state secrets privilege.... The state secrets privilege is well-established in federal law.... This privilege has been applied many times to protect our nation’s secrets from disclosure.... It is an absolute privilege that renders information unavailable in litigation.”
‘I Can Tell You What Happened’
One day in 1977, in her mother’s attic, Judy Palya Loether came across an old news article about Eugene Mechler, a civilian engineer who’d survived the B-29 crash. It said he lived in Earltown, part of Cherry Hill -- right nearby. On impulse, Judy looked him up in a phone book and dialed a number. Mechler’s daughter answered. It turned out Mechler split his time between Maine and Florida. The daughter gave Judy an address.
Mechler wrote first, having heard of Judy’s inquiry from his daughter. His handwritten words sprawled across the page.
I was in a B-29 accident in which Al Palya was also involved. Do I have the right Palya? You called my daughter to ask for more details on the accident. I can send you a copy of the report I made, and if you wish I can look for the newspaper accounts.... I think you will find my account interesting. Al was sitting in the nose gunner’s position in front of the pilots. I was in the mid-section aft of the bomb bay. So I didn’t see anything of him after the plane began to have trouble. But I can tell you what happened to the plane. Be glad to answer your questions.
Judy wrote back, asking about the fatal flight, the mission, her father. Mechler responded, his scrawl interspersed with assorted sketches.
I am sure the plane was not sabotaged. Quite a few B-29s had the same problem about this time.... I knew your father only as a business associate.... Your father was a capable administrator and engineer.... The only other thing I know is that your father had a woodworking shop in the garage with several power tools. This was one of his hobbies. The [Banshee project] equipment on the plane was what we were supposed to improve. It was no more or less secret than any other experimental equipment classified as “Secret.” ... Our particular project was probably never declassified.
Judy read Mechler’s letters with interest but didn’t know what more to ask. It seemed to her this well had run dry.
The years 1979 to 1994 were busy ones. She had two children to raise and a host of volunteer activities to tend, including work at the local schools, the Cub Scouts, the county fair and a garden association. There was her mother to help as well: In 1992, widowed a second time, burdened by taxes, living on a small pension, Betty ran out of money and had to give up her Cherry Hill house.
When Judy was with her aunt, Al Palya’s younger sister, she would ask questions about her dad. She never questioned her mother, though. Nor did she talk to her brothers about their father. She couldn’t say why. It was just a tender area, something they had to put aside. And once you put it aside, you didn’t know when to bring it up.
For that matter, Judy found it hard to have any intimate conversations with her mother, whom she considered an old-fashioned Victorian in many ways. Still, Betty had always made Judy feel loved. She’d seen her mother cry just once -- when one of Judy’s brothers left to join the Marine Corps in Vietnam. Betty had devoted her life to her children, waving her wand, trying to make everything beautiful.
Not even a magic wand, of course, could cure everything. Life became more complex as you grew older. The hurts piled up, the patterns started to appear, if only because you’d been around long enough to recognize them. Books provided one form of solace to Judy. Then, in 1995, the Internet began to take form. Sitting before her new monitor one day, she typed in her maiden name, Palya, and started tracing her family’s genealogy.
She was in her mid-40s then -- older, she realized, than her father was when he died. In 1996, she wrote a letter to his close colleague Walter Frick, who had escorted Al Palya’s body home from Waycross. Writing back, Frick reminisced about the sad trip from Georgia, calling Judy’s dad “the friendliest person I ever knew.”
Time passed. One day in 1999, at her computer, Judy typed in her father’s full name. That took her to a page about Shoran, a military radar guidance system mentioned often in his workbooks. On EBay, she found an old RCA advertisement for Shoran, and bought the ad for $7.
More months passed. Judy kept typing in different combinations of words, seeing where they might lead. Finally, one day in February 2000, she happened to type in “B29 + accident.” In an instant, that took her to a website titled, in bold black capital letters, “USAF & USAAF AIRCRAFT ACCIDENT REPORTS 1918-1955.” Below that was a second line: “Complete accident reports from 1918 through 1955 now available.”
At the bottom of the page, Judy found a fuller explanation: “There were thousands of aircraft accidents in early U.S. Air Force history.... Air Force regulations denied any public access to those records until 1996, when they were changed to allow unlimited access to all reports up to December 31, 1955. It’s because of this we’re able to offer these complete investigation reports!”
Judy stared at her computer screen. Oh my God, she thought. Wow.
She hadn’t known there was such a thing as an accident report. She still didn’t know the government had refused to produce it 50 years ago. All she knew was that there had been a lawsuit and money paid to her mother. She thought her mom had won.
What interested her now wasn’t why the plane crashed. As before -- as always -- she wanted to know why her father was on the plane. She wanted to know what was so “top secret” about his work.
She e-mailed the operator of the website, who had bought the old microfilmed reports and started a small business selling them. In return for $63, she received 220 pages and 15 photographs. By the end of February, Judy Palya Loether held in her hands the Air Force accident report that her mother and the patrician Philadelphia lawyer Charles Biddle had so strenuously but vainly sought from the government half a century before.
For a moment, she hesitated to pull it from its large envelope, fearing what gruesome details it might contain. But pull it she did.
As she began to read, she felt disappointment. There was nothing about confidential research being done on the plane. In fact, other than a reference to removing secret equipment from the crash site, there wasn’t anything about her father’s project.
Shoot, Judy thought. This doesn’t have what I want.
She kept reading though, and as she did, her consternation grew. While this report didn’t describe anything secret, it seemed to involve all sorts of mistakes and negligence. It looked to Judy as if an awful lot of bad things had happened in that plane. She understood human mistakes, such as the pilot turning off the wrong engine. But the maintenance supervisors -- why hadn’t they complied with those technical orders? Why hadn’t they installed heat shields to fix the B-29 engines’ fire hazard?
Finding an Ally and Digging Deeper
Despite its disturbing elements, something about the accident report gave Judy Palya Loether great comfort. Her father no longer seemed so unreachable and unknowable.
She went back to the old newspaper articles and studied them. What jumped out was the name Susan Brauner, daughter of William Brauner, a civilian engineer who’d flown that day with Judy’s father. According to the papers, Susan was 4 years old when her father died in the B-29 crash. It occurred to Judy: There was a woman out there, a mom close to her own age, who’d grown up with the same situation. No daddy; a daddy who had died on that plane.
Again, Judy searched on the Internet, typing in Susan’s name. She came up with 20 possibilities and sent them all postcards. My name is Judy Palya Loether.... My dad was killed in a U.S. Air Force B-29 crash in October 1948.... I’m looking for the Susan Brauner who lost her Dad in the same plane.
Ten days later, she found a note in her mailbox from the right Susan Brauner. She lived in the same state, Massachusetts. She had a phone number. Judy dialed it. I found an accident report, she told Susan. There’s lots of negligence.
This interested but did not overwhelm Susan Brauner. Finding Judy Palya Loether’s postcard in her mailbox had been more of a curiosity than a thunderbolt. She was 55 then, and had a sister, Cathy, born after their father’s death. They’d talked often in the Brauner home about their lost father, so he was never a mystery. Susan’s mother, Phyllis, had not remarried. She’d earned a doctorate in analytical chemistry and had enjoyed an honored career as a professor at Simmons College.
All the same, Phyllis Brauner had forever wrestled with limited funds and unanswered questions. The family twice had filed Freedom of Information Act requests about the plane crash, only to receive blacked-out documents. A void had never entirely been filled.
Judy and the Brauner family -- Susan, Cathy and Phyllis -- agreed to meet for lunch at the Wellesley Inn, which offered a staid charm in the middle of a college town. The Brauners arrived first. Twenty minutes late, Judy bustled in bearing two large canvas bags. She’d suggested they bring photos of their fathers. The Brauners offered one; she offered several, including one in a frame. She also offered presents -- homemade soaps with shells set in them. Susan considered this thoughtful, but told herself: First let’s see who you are.
From her bags Judy pulled a pile of documents, including copies of the accident report. She talked about the report as she handed it out. The Brauners listened rather than read. Judy started with a factual account but grew emotional as she spoke.
Although Susan did not share Judy’s righteous indignation that day, she did feel it important to hear all this, to know how her father died. So did Phyllis Brauner. At 83, she found it hard to get around, but had been adamant about walking into this dining room, however slowly. She grew upset listening to Judy’s account of negligence. If the Brauners focused on anything, other than being polite to Judy, it was this negligence.
The lack of national security secrets didn’t draw much conversation. Judy still didn’t know there’d been a pivotal battle with the government over the state secrets privilege. Not until this lunch did she even know there’d been a Supreme Court case. When Susan Brauner told her, she felt stunned.
As soon as she got home, she looked up U.S. vs. Reynolds on the Internet. It wasn’t easy to read all the legalese. Still, it seemed clear to Judy that the justices were talking about an accident report full of national security secrets.
No, Judy thought. That’s not in the report. It’s not there.
Now she was full of new questions. Once more she read through her pile of newspaper articles, court documents and correspondence. She laid everything out in chronological order. She forced herself to digest the legalese. She tracked the process as it unfolded through the district court, the court of appeals, the Supreme Court. Clearly, the Reynolds decision was all about national security. But she had the accident report right in front of her, and it contained nothing related to national security.
No longer was Judy thinking about negligence. Now she was thinking: What’s going on here?
At Last, an Answer
Judy Palya Loether turned back to the Internet to do more research. She also wrote once again to the surviving engineer Eugene Mechler.
He responded. I often lie awake at night thinking about the B-29 crash.... Most if not all the civilian passengers didn’t know enough.... I didn’t know where the escape hatch in the bomb bay wall was located.... I remember thinking my wife was six months pregnant. “Poor Alice, this is going to be tough on her!” All my life God has watched over me and this was one more instance ...
In a second letter, Mechler repeated that thought: I realize that it was only God’s looking after me that saved me from the accident. I calculated that if it had taken me 10 more seconds I would be dead.
Judy stared at those words. She couldn’t help it, they irritated her. God saved Eugene Mechler? Then why not her father?
Something else gnawed at her. Why did those top government officials lie? Why on earth? There hadn’t been a lot of money involved, not for the United States government. The federal district judge had said, if you don’t want to show the accident report, pay the money. The government could have just done that. Judy didn’t understand why the secretary of the Air Force and the judge advocate general would instead lie to the Supreme Court. There was a difference between the pilot making a mistake under stress and these guys sitting in a conference room deciding. Often Judy had an image in her mind of that room, of those two high officers signing false affidavits. She didn’t know where a person got the wherewithal to lie before the Supreme Court.
In the late spring of 2000, Judy decided to send an e-mail to the Philadelphia law firm that had represented her mother 50 years before. I’m researching the circumstances of my father’s death, she wrote to Drinker Biddle & Reath. Your firm represented my mother. Do you have any files? Do you know of any lawyers who might help me?
Charles Biddle died in 1972, but the firm still bore his name. Judy’s message drew attention. The lawyers couldn’t find the relevant case files, though. They’d moved twice and thrown out many aging documents. They found only a card showing that they indeed had handled the case. They wrote Judy back advising her of this. Because she seemed focused on a negligence claim, they provided the names of several aviation lawyers.
Judy and the Brauners tried vainly to interest some of them. Judy’s agitation deepened. That fall of 2000, her mother died, and then that December so did Phyllis Brauner. Soon after came word that Eugene Mechler was gone. Those with memories were disappearing. The passage of time pressed on Judy.
At the end of 2001, she drove with a friend to Florida, where their families spent New Year’s Eve. Studying a map, she saw their route home would take them close to Waycross. She reexamined old news stories that mentioned the Zachry family farm. On a computer, she found a phone number for one of the Zachrys. She called him. Bernard Zachry answered -- the boy who’d been 6 years old on the day of the plane crash. Right off, he started recollecting. I was 6. I was on the school playground. Parts of the plane fell nearby. Mom came to get me. We’d tied a little girl to a tree. We left her on the tree
Judy next called Bernard’s brother Michael, who’d been 4 that day. He remembered running crying to the house. Then she called their sister Millie, who in 1948 hadn’t been born yet. They all arranged to meet for lunch at an Applebee’s in Waycross.
When Judy and her Florida friend got there, they found no fewer than 15 Zachrys waiting -- children, spouses, everyone. Bernard and Michael’s father, well over 80, couldn’t talk or hear very well, but the others chatted away. Judy brought out the accident report and photos, which intrigued them. The elder Zachry gave her an aerial photo of his farm at the time of the crash. On it, Bernard drew where the plane’s parts had landed. By the time lunch was over, they were all nearly crying.
Then Bernard’s sister, Millie, took Judy and her friend to the farm. After giving them a golf-cart tour and providing refreshments, she escorted Judy to the spot where the B-29 had crashed. What had been pasture half a century ago was now densely wooded.
Judy asked to be alone. She plunged into the dark forest. High branches offered a sheltering canopy. She sat down on a tree stump and looked around. Stumps and trunks and branches. This was the edge of the Okefenokee Swamp, a marshy, messy place. Judy would later talk about this moment to every publication that called, including the Courier Post, the local New Jersey paper that for years landed daily on her family’s doorstep.
OK, she thought. Something big should happen. What’s it going to be?
On her mind just then was how nice the Zachry family had been to her. To have a weird person on their farm, sitting out here, her father dead more than 50 years. She had thought maybe they wouldn’t care, would just say, “It happened over there.” Instead -- 15 Zachrys! Judy felt hugely loved. She felt enveloped by love, overwhelmed by how the Zachry family was treating her.
Then she found that she could see the sky through the trees. She began to think of her father. It distressed her to think of him falling to earth. Better if he’d been found in the plane.
It came not as a bolt or epiphany, only a sense: Here on this stump, Judy finally felt as if she’d found her father. He no longer was a mystery. Al Palya had become real to his daughter. She felt connected to him. Utterly connected.
She tried to imagine his thoughts in those last moments. Who will take care of my family? Yes. Judy just knew. He was thinking of her; he loved her. Here she was, 53 years old, and she hadn’t gotten it until now.
‘We Are Intrigued With the Cause’
Back home, Judy Palya Loether decided to find Patricia Reynolds, the third B-29 widow in U.S. vs. Reynolds. From old correspondence, Judy knew she was now Patricia Herring. Judy sent postcards to 30 Herrings in Indianapolis. Within days, a card came back saying, “I’m really impressed that you have been able to track me down.”
Patricia Reynolds Herring was 74 then. She’d been married to her second husband, Don, for more than 50 years and had three grown children. She’d had a richly varied career as a school volunteer, Head Start organizer, employment agency manager, school district program director and hospital coordinator. Late in life, she’d also become an accomplished painter of watercolors. Hearing from Judy and reading the accident report opened the door to a long-buried past.
What she read upset her; she hadn’t known Bob Reynolds was conscious as the plane plummeted. Still, she welcomed Judy’s inquiry, for it gave her the chance to go through a process she’d never started. She’d gone straight into denial on the day of the crash, shedding no tears, treating the tragedy as if it hadn’t happened. She’d never met, spoken to or heard from the other two widows. Yet Bob Reynolds -- sweet, glowing Bob -- had always been a ghost in her house.
That spring of 2002, Judy also called Susan Brauner and said, “I want to sue.” Again they sent letters to lawyers. Some didn’t answer, others declined to take their case. Then the women found a website about their mothers’ old lawyer, Charles Biddle. He had been brilliant before the Supreme Court, Judy felt, and had lost only because the government lied. What a shame he couldn’t know this. A notion seized her: His law firm should challenge U.S. vs. Reynolds.
Judy turned a second time to Drinker Biddle & Reath. At its website, she found a form. She typed out a message, trying not to ramble, not to fume. She explained who she was. She explained about an accident report that contained no national security secrets.
This time, Judy received an e-mail in late July from the law firm’s then-head of litigation. “I am interested in following up with you about the Reynolds case,” wrote Wilson M. Brown III. “This was well before the time of most of us, but the past of this firm means a great deal to all of us who carry on in its name, and we are intrigued with the cause you have outlined.” Brown wanted to see the accident report. Soon after, he wanted to set up a conference call.
In November 2002, with members of all three families on the line, Wilson Brown introduced himself and briefly talked about the firm. Judy sat on the edge of her seat, wondering what these lawyers meant to do.
A moment later, Brown told her: “We’re going to take the case.”
The Supreme Court Has Its Say
Wilson Brown was too young to know Charles Biddle, but he had heard that this revered name partner in his firm had never liked the outcome of the B-29 case. What an opportunity.
Although Brown and two associates couldn’t find the law firm’s original files, the Supreme Court’s records had been preserved, and that gave the lawyers a foothold. They dived into the facts and the case law. Right off, Brown felt shocked by the role of the government attorneys back then, particularly the solicitor general. Brown couldn’t believe that this man would stand flat-footed before the Supreme Court and say the documents contained national security secrets. The solicitor general had only his integrity. How could he relinquish that? It took Brown the longest time to come up with an answer: The solicitor general didn’t know. That had to be it. He hadn’t been told.
How to cure this fraud? Brown could go to federal district court, but the trial court had nothing to fix; it had ruled in the widows’ favor. So had the court of appeals. It was the Supreme Court that had overturned -- only there had the fraud worked. Brown felt he had to get this case back before the high court.
He and his colleagues pondered and studied. When Supreme Court jurisdiction is unclear, he’d learned at law school, you should consider the All Writs Act, which gives the court the power to issue all recognized writs necessary to bring about a just remedy. Brown pulled Black’s Law Dictionary off a shelf in his office. He began to read treatises on unusual writs. His eyes stopped at mention of a writ of error coram nobis.
He’d studied this rare writ in law school but needed a refresher. He read on. This writ essentially provided a means for a court to correct an error -- an error made in proceedings “before us.”
That would be the path, Wilson Brown decided. They’d petition for a writ of error coram nobis.
Their goal wasn’t to overturn the legal precedent of U.S. vs. Reynolds; they were seeking justice for three families by challenging the facts of the case. They wanted the balance of the original judgment, $55,000, plus compounded interest -- an estimated $1.14 million.
When the day came to send its petition to the Supreme Court, Wilson Brown’s law firm dispatched its most reliable filing clerk, Francis “Franny” Bisicchia, on a southbound train to Washington, D.C. It was Feb. 26, 2003, a Wednesday. Franny had the required 40 copies of the petition in booklet format in a box that she’d loaded on a handcart. In Washington, she rode a taxi from the train station to the court, where police officers, for security reasons, accept all large packages. They took her box and file-stamped one petition for her as proof of receipt.
The box of petitions, addressed simply to the Clerk of the Court, traveled then from the police to the clerk’s office. There it apparently reached the hands of a junior clerk, Clayton R. Higgins Jr. The next Monday, Higgins called the law firm to say that the petition had been rejected on its face by the clerk’s office.
Wilson Brown’s associate, Jeff Almeida, took the phone call. Almeida believed the clerk was wrong to say their type of petition couldn’t even be filed. Over several conversations that Monday, he explained why, citing court rules and cases. In response, the clerk said only that he’d consult others in his office. Two days later, Christopher Vasil, the chief deputy clerk, called Almeida and advised him to refile the petition with a covering “motion to file.” Almeida didn’t believe Supreme Court rules required this, but he conceded.
On March 4, Almeida sent the box of petitions back to the Supreme Court, once again under the care of Franny Bisicchia. Weeks passed before the law firm learned that the clerks this time had passed the petition to the court. There, the justices on April 4 took the step of asking Solicitor Gen. Theodore B. Olson if his office wished to file a response.
Olson did. For a time, Wilson Brown and his clients entertained the notion that the solicitor general might share their sense of dismay at what his office had done 50 years ago. Olson did not, however. On May 30, he asked the Supreme Court to reject the motion to file. He did so for a variety of reasons, among them that “the law favors finality,” but his most startling argument was that no fraud had been committed.
The government in 1950, Olson maintained, never stated that “the particular accident reports or witness statements in this case in fact contained military or state secrets.” Rather, the Air Force secretary was “legitimately concerned” that classified information might be embedded in the Air Force’s internal memos and in the letter Frank Folsom of RCA wrote to Gen. Hoyt Vandenberg weeks after the crash. This Olson argued even though Folsom’s letter had made only vague, passing reference to Project Banshee and hadn’t been the issue back then. In truth, the Air Force’s experiments with remote-controlled aircraft had not even been a secret: A drone plane had been featured in Washington, D.C., newspapers in January 1947, when it flew over the nation’s capital carrying members of the news media, who reported that the “purpose of the flight is to demonstrate the effectiveness of remote control of bombers, which will be a major aerial weapon in the future.”
Olson, as others before, finally invoked the context of the times to justify his stance: "[I]n this type of proceeding, it is easy for parties to make hindsight judgments.... The proper focus for the courts is to seek to evaluate the claim of privilege from the standpoint of the day and context in which it was asserted. The claim of privilege in this case was made in 1950, at a time in the Nation’s history -- during the twilight of World War II and the dawn of the Cold War -- when the country, and especially the military, was uniquely sensitive to need for ‘vigorous preparation for national defense.’ ... The allegations of fraud made by the petition in this case ... must be viewed in that light.”
By the time Olson filed his response, Judy Palya Loether’s quest had drawn the attention of print and broadcast journalists. There’d been a flurry of interviews and feature articles. Although Wilson Brown kept pointedly saying that this case is “about three families.... It is not about national security law,” many accounts found larger meaning beyond the human interest. Parallels with current times couldn’t be ignored: the heightened concerns about national security, the Bush administration’s desire for expanded powers to fight perceived threats, Atty. Gen. Ashcroft’s refusal to produce documents or witnesses in sensitive cases involving accused terrorists.
One news report declared the new Reynolds claim “a case to shake the foundation of national security.” Another thought “it could serve as an important lesson about the potential consequences of expanding the government’s homeland security powers.” In Massachusetts, Judy suggested to one reporter that “this story is all about America. It isn’t about a plane crash. It’s about my country doing the wrong thing.”
She and Susan Brauner talked often now of “rectifying an injustice” and “getting the word out.” They also, tentatively, exchanged messages about how the families should divide whatever money the courts might award them. Judy marveled at what they had set in motion.
“What is very rewarding,” she said one day last June, “are all the people who are involved in this. People are joining me on this journey. I have found my father. Patricia has found the opportunity to face this finally. Then there’s Charles Biddle’s law firm. How right can that be?”
Other voices, however -- less enthusiastic voices -- also could be heard around Washington in the early summer of 2003.
At the George Washington University Law School, Jonathan Siegel told the National Law Journal, “I would have to guess this lawsuit isn’t going to work. It’s a basic principle of law that once a case gets decided and the decision is final, that’s it.”
At the Center for National Security Studies, Kate Martin literally sputtered at the import being given to fraudulent government claims: “That facts of the original case are not true is irrelevant to the state secrets privilege. The idea that it undercuts the privilege is ridiculous. Often in cases, after they’re decided, the facts are proven to be not true. That’s the nature of the legal system. Sometimes people lie. Sometimes there’s new information.”
George Washington University law professor Jonathan Turley -- whose own office had been sealed by a federal court concerned that it might contain state secrets related to a sensitive case -- said: “For the Supreme Court to address the fact clearly that it had been lied to would open difficult issues. It would be like Claude Rains saying, ‘I’m shocked, I’m shocked.’ The court used the facts of Reynolds to say the government could be trusted.... Reynolds was based on trust, on willful blinders. There’s much danger in going back now, in recognizing that the government routinely lies. For that reason, they won’t reopen this. I think Reynolds is like discovering an unfaithful wife after 50 years of marriage. You’re hurt by the betrayal, but you can’t turn back half a century. You preserve the marriage for the children’s sake.”
Turley spoke those words in Washington on Friday, June 20. The Supreme Court term ended the following week, and it proved to be an extraordinary five days. Banner headlines proclaimed two seminal court decisions: one to preserve affirmative action in university admissions, the other to recognize the due process rights of gay men and lesbians. Amid the cascade of stories, columns and editorials, few noticed another action by the justices.
On Monday of that week, the Supreme Court delivered a simple one-sentence ruling in the case titled In Re Patricia J. Herring, Et Al: “The motion for leave to file a petition for a writ of error coram nobis is denied.”
Friends for the Journey
By the end of summer, an impulse to party had supplanted feelings of disappointment among those who’d thought to challenge U.S. vs. Reynolds. Invitations began to arrive in dozens of mailboxes. “The Court Has Decided ...” they read. “You Have Been Ordered To Appear at a Clam Bake on Cape Cod.” Besides a traditional shore dinner, the “docket” promised “Dart Throwing at Justices.” All nine targets were depicted right there on the invitation, in eerily convincing sketches drawn by Patricia Reynolds Herring. Eight justices were dancing; one, Sandra Day O’Connor, was perched on a swing -- “a vote swing,” the caption explained.
Everyone came to Susan Brauner’s home in Harwich Port, Mass. It was the first time they had all gathered as a group. Pat Reynolds Herring and her husband, Don, flew from Indianapolis. Judy Palya Loether and her husband, John, drove from western Massachusetts. So did Cathy Brauner and her daughter, Hyacinth. Susan Brauner’s daughter and son-in-law showed up, and her grandchildren, and family friends who’d known Phyllis Brauner. From Philadelphia came the Drinker Biddle & Reath lead attorney Wilson Brown, with his wife, Anne.
They all stood together in Susan Brauner’s backyard, minutes from Nantucket Sound, sampling Cape Cod wine, Nantucket ale and homemade clam chowder. Then came lobster rolls, steamers, corn on the cob, potato salad, fruit salad and a table full of desserts. Children darted around and scooted off to the beach. Jokes flowed easily about government officials and high court justices. The partygoers dropped their dart-throwing idea, but only because they expected a congressman to show up.
Their fight wasn’t over. They were lobbying Congress for a remedy, and within weeks would file an action seeking relief in federal district court. However those efforts turned out (a judge in Philadelphia will hear arguments on May 11), they’d already realized a type of success: Lawyers challenging other state secrets claims had started to study and use their petition. When the government invoked Reynolds, these lawyers could now introduce the story of Reynolds’ genesis.
All the same, an elegiac tone colored the day’s celebration.
Pat Reynolds Herring felt that whatever happened “wouldn’t be the same as the Supreme Court admitting fault.” Susan Brauner allowed that the court’s wordless denial had “stung,” had been “a kind of revelation.” Judy Palya Loether confessed that she’d expected the Department of Justice to be “appalled” at what transpired 50 years ago. She’d had a fantasy, even, that President Bush would call her to say this was wrong, we’ll make it right, we’re very sorry.
“It didn’t happen that way,” Judy said, as the clambake wound down. “Maybe the law isn’t about right or wrong. The concept that the government lied to the Supreme Court seemed to me a terrible thing to do. It appears that the justices were not as appalled as I was.”
That thought did not devastate her, though. Instead, she found comfort in what she still, repeatedly, called her “journey” -- and in all those who’d joined her along the way. At nightfall, from a corner, she watched them gather in the dimly lit family room of Susan Brauner’s home, four generations together, many of them laboring over a mammoth jigsaw puzzle -- an image of the globe -- brought as a present by Pat Reynolds Herring.
Their fathers and husbands, Judy believed, would be happy to know they were all together. At the clambake that afternoon, she’d risen to say, “I hope we have another chance to gather, to celebrate victory.” Now she thought: I would put a higher value on this experience than on winning the Supreme Court decision.
She weighed that notion, then said it out loud: “Yes. If I had to trade my experiences for a Supreme Court ruling, I wouldn’t. The government is a cold entity. These are real people.”
Researcher Nona Yates contributed to this report.
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.
Accounts of Judy’s visits to the attic and conversations with her mother are based on interviews with Judy. Descriptions of the crash site and the Zachry farm derive from a visit to the Waycross, Ga., farm.
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.
The description of the Cape Cod clambake is drawn from attendance at Susan Brauner’s party.
Historical newspapers and photos of the principals are from family members. Photos of Susan Brauner, Bernard Zachry and Wilson Brown III are by staff photographer Alex Quesada. The photo of Patricia Reynolds Herring is by Anthony Robert La Penna.
On the Web
To read the first part of this story and see more photos and documents, go to latimes.com/B29