Monday, May 15, 2006

"Double super secret background"

The precedent-setting "state secrets" case from 1953 is United States v. Reynolds. In 1948 an Air Force B-29 crashed near Waycross, Georgia while testing secret electronic equipment. An engine fire had precipitated the breakup of the aircraft as the thirteen men onboard attempted to bail out. Only four survived.

Widows of three civilian passengers who died sued for compensation, believing the government negligent. Military officials argued that release of the Air Force crash report for the trial would compromise national security (though they offered to provide the survivors for examination). The Supreme Court agreed and ruled in the government's favor without itself ever examining the documents. The widows reluctantly settled for a lesser amount than they had originally won in the lower courts.

Justifying the need for secrecy at the time, Air Force Secretary Thomas K. Finletter wrote:
"The airplane . . carried confidential equipment on board and any disclosure of its mission or information concerning its operation or performance would be prejudicial to this Department and would not be in the public interest."
A series by Matt Katz on the families' efforts to find out the truth is available online from the South Jersey Courier-Post, entitled "State Secrets." It explains:
... the decision effectively established a new law, granting the military unprecedented power to conceal documents that it says can compromise national security. It is considered the most important case on the "state secrets privilege," and essentially allows the military to keep documents secret from anyone, even from federal judges.
Jump ahead fifty years.

After the birth of her first son, Judith Loether began wondering about her father, Albert Palya, an RCA engineer from Hadden Heights, NJ, the son of Austrian immigrants, and about the accident that had taken his life when she was only days old.

In 2000, Loether stumbled across run by Michael Stowe, an aviation history buff who has collected over 100,000 declassified military airplane accident reports. Decades' worth. Loether ordered a copy of the 220-page declassified report on the B-29 crash that killed her father. She spent months poring over it.
"It was just wrong. It's not the American way," Loether says today, barely concealing her anger.
The accident report laid out the details,
Failure to follow procedure. Failure to carry out special safety orders. Pilot error. These were the causes identified by the Air Force - all evidence that could have been used 50 years ago to support the claims of negligence.
Among other findings the Courier-Post series reports:
● Two Air Force orders calling for changes in the exhaust system - "for the purpose of eliminating a definite fire hazard" - were not complied with. The fire began in the exhaust system.

● An Air Force order requiring the inspection of rivets was ignored. Loose rivets may have been a factor in the crash.

● The plane needed "more than the normal amount of maintenance." It had been out of commission because of technical problems 97 of the 189 days before the crash.
There was slight mention of the classified testing program, Project Banshee, the kind of information routinely blacked out today in documents released through the Freedom of Information Act, signed by President Lyndon Johnson in 1966.
Last November, Brown [the families' lawyer] took the case to the Supreme Court with a highly unusual petition charging that fraud was committed upon the court five decades earlier. In the petition, the three families sought $1.14 million, the $55,000 difference, adjusted for inflation, between the original court award and the money the families received in the final settlement.

The petition argued the Air Force intentionally suppressed the crash secrets.

"When it found it could not protect them based on truth, it determined to resort to the lie that they contained, and might compromise, military secrets," the petition says.
The Supreme Court refused to hear their case.

Further details of their ongoing legal battle are available here, here, and here (the Third Circuit's judgment from September 2005).

The precedent having been set, United States v. Reynolds has been cited over 500 times in the years since, according to the Courier-Post, including 19 times in the Supreme Court. The Nixon administration invoked Reynolds in the 1974 Watergate case. Two weeks ago, the Bush administration invoked the state secrets privilege to quash the Electronic Frontiers Foundation's class action lawsuit against AT&T.

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