It’s not enough that President Bush and his intelligence and foreign policy advisers are on the defensive for allegedly exaggerating their national security assessments regarding Iraq’s military capabilities. Now, the administration’s lawyers have come to the defense of an exaggerated claim about America’s “national security.” They are fighting an extraordinary petition pending before the Supreme Court that argues the U.S. government used a bogus claim of national security to hide its negligence in a case the court heard back in 1953.
The Justice Department legal team had a choice to make: It could either support or oppose the petition to reopen the case known as United States v. Reynolds. Regrettably, on May 30, Solicitor General Theodore B. Olson filed papers urging the court not to reopen the case. In a legal brief that is an exercise in carefully crafted obfuscation, the government argues that the allegation of fraud “lacks merit.” Whether that position is motivated by an attempt to suppress embarrassing information about past government behavior or is simply a manifestation of a competitive, win‐at‐all‐costs attitude, it is profoundly misguided. By attempting to whitewash the misconduct of a prior administration — in this case, that of Democrat Harry S Truman — the government lawyers have now compounded a half‐century‐old injustice.
The petition before the court has its origins in a plane crash that occurred on Oct. 6, 1948. That day, an Air Force B-29 bomber left Robbins Air Force Base in Georgia on a round‐trip flight to Orlando to test secret navigation equipment. Heading home, the plane went down in Waycross, Ga. It was carrying nine crew members and four civilians, all engineers employed by private firms involved in electronics research and development. Nine died in the crash, including three of the engineers. A few months later, the engineers’ widows sued the government for the wrongful death of their spouses under the Federal Tort Claims Act (FTCA).
Congress passed the FTCA in 1946 to provide a uniform, statutory basis for citizens to sue the U.S. government for harm caused by its negligence or misconduct. The FTCA is one of the least controversial laws ever enacted. Who would dispute the idea that the victims of an accident would be entitled to compensation if, say, a U.S. submarine were to negligently surface and overturn a luxury cruise liner? Of course, the mere filing of a suit is not the same as establishing liability. The government’s lawyers can raise a variety of legal defenses to defeat flimsy or patently frivolous claims.
The widows of the deceased engineers — Patricia Reynolds, Elizabeth Palya, and Phyllis Brauner — turned to a well‐known Philadelphia lawyer, Charles Biddle, to handle their lawsuit. Biddle had been an ace fighter pilot in World War I. He knew military aviation as well as any lawyer in America and he knew that B‐29s were prone to accidents. But he quickly ran into a bureaucratic brick wall.
In the fall of 1950, preparing for trial, Biddle requested a copy of the Air Force investigative report of the accident. The government denied the request. Biddle brought this to the attention of Federal District Judge William Kirkpatrick of the Eastern District of Pennsylvania, who ordered the government to produce the report. Instead, the government produced a letter from the secretary of the Air Force, Thomas Finletter, who said it would not be in the “public interest” to release the document.
Kirkpatrick withdrew his order and scheduled a hearing to give the government an opportunity to justify its intransigence. At that hearing, the government offered a sworn statement from the judge advocate general of the Air Force, Maj. Gen. Reginald Harmon, who declared that releasing the report would seriously hamper national security. Kirkpatrick decided to review the report himself in private and then make a final ruling. Biddle agreed, but the Air Force considered that arrangement unacceptable. Instead of escalating the battle over the report by holding the government in contempt, Kirkpatrick decided to punish the government by simply ending the case, entering a judgment for Biddle and the widows on the negligence claim.
The government appealed the case all the way to the Supreme Court. In its arguments, the government repeated its sweeping claim that it could withhold any documents on the basis of the “public interest.” Biddle shot back that the administration of justice in American courtrooms is most assuredly in the “public interest.” Nevertheless, on March 9, 1953, the Supreme Court announced its landmark “state secrets” ruling in United States v. Reynolds. In a 6–3 decision, the court concluded that the Air Force could withhold its accident report. According to the court, the legal question was simply a matter of whether the government’s national security privilege was valid. If the government’s invocation of state secrecy was valid, the trial court was wrong to enter a judgment for the widows. If the invocation was invalid, Kirkpatrick’s handling of the case would have been correct under the law.
The high court, however, fudged the pivotal question of who decides the validity of the privilege. It simply issued a bland instruction to trial judges to examine the circumstances of each case closely. With respect to the B-29 crash report, the court ruled that the government’s privilege claim was plausible because the purpose of the particular flight was to test secret electronic equipment. The court concluded that Biddle had alternative sources of information to pursue the negligence theory, so it was not “necessary” for the government to disclose the accident report. After that bitter setback, Biddle settled the case out of court.
The case was history, or so it seemed. But after the passage of several decades, there has been an astonishing development. In 2000, Judith Palya Loether, the daughter of one of the civilian engineers, discovered on the Internet that the long‐secret report had been declassified. She ordered a copy and was outraged to learn that it contained no military secrets. But there was incriminating evidence showing government negligence. According to the report, the crash was most likely caused by an engine fire. Contrary to Air Force directives, a protective shield designed to prevent engine overheating had not been installed. The report concluded: “The aircraft is not considered to have been safe for flight.”
Now, the relatives of the deceased civilian engineers are back in the Supreme Court, represented by Biddle’s old law firm. On March 4, they filed an extraordinary petition asking the court to reverse its prior holding because it was based upon a fraudulent claim of national security, and to allow the case to be reopened. After losing the original legal battle, the families had settled for a sum less than what Kirkpatrick had awarded them. They are now asking for the difference — with interest for the past 50 years, noting that this was money lost as a result of the government’s deceit.
Unfortunately, just like the government lawyers whom Biddle fought decades ago, the solicitor general has come up with a variety of reasons the Supreme Court should reject the petition. According to the Justice Department brief, the legal principle of “finality” of judicial decisions ought to take precedence because the widows’ families have not even alleged a “fundamental miscarriage of justice.” To get around the fraudulent charge about “national security,” the department’s lawyers now have the audacity to declare that the claim of privilege invoked by Air Force in 1953 “did not state that the particular [emphasis mine] accident report … in this case in fact contained military or state secrets.”
That claim is preposterous. The heart and soul of the government’s case was its representation that the accident report contained military secrets.
This petition is a vivid reminder that government officials can use the veil of “national security” to shield themselves from criminal prosecution for misconduct, civil legal liability or embarrassing revelations. The only way to minimize those kinds of abuses is to treat legal claims of national security with a healthy dose of skepticism.