Obscure plane crash in 1948 leads to modern-day claim of 'national security' secrecy

Pulitzer Prize author speaks about new book By Roberta M. Gubbins Legal News The Thomas M. Cooley Chapter of the Inns of Court recently hosted a reception for Barry Siegel, 2002 Pulitzer Prize winning author. Siegel was there to discuss his latest book, "Claim of Privilege: A Mysterious Plane Crash, A Landmark Supreme Court Case, and the Rise of State Secrets." The book details how an obscure plane crash in the 1940s led to the expansion of executive privilege to the detriment of traditional judicial process and a culture of governmental secrecy in the name of "national security." Siegel said that the story begins on Oct. 6, 1948, the dawn of the Cold War, when a U.S. Air Force B-29 Superfortress fell from the sky over Waycross, Georgia, killing, among others, three civilian engineers who were aboard the doomed B-29 to test secret navigational equipment. When the engineers' wives sued in June 1949, the Air Force refused to hand over its accident report and witness statements, claiming the documents contained classified information that--given Cold War dangers--would threaten national security. The widows continued to fight, their case finally reaching the Supreme Court. In March 1953, the Court sided with the Air Force in U.S. v Reynolds. This landmark decision formally recognized the state secrets privilege--a privilege that enables federal agencies to conceal conduct, withhold documents and block civil litigation in the name of national security. Over the next 50 years, Judy Palya Loether, a daughter of one of the engineers who died in the crash, never stopped wondering what had happened in that B-29. Then, Siegel explained, in 2000, came Loether's stunning discovery: the documents that the three widows had vainly sought half a century before had been declassified in 1996 and were now available. She ordered a set and began to read. What she saw shocked and dismayed her. The documents contained a compendium of witness statements and expert findings that indicate a number of mistakes and errors led to the crash including alleged mechanical flaws and pilot error. But Loether and her lawyers could not see anything in the documentation that could be construed as military or tactical secrets of any kind. In 2003, they determined to take on the government once more--and to ask the Supreme Court to remedy its own 50-year-old error. The Supreme Court declined to hear their claim in June of that year. The decision in Reynolds stands. As Loether said at the time, "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." Further attempts to reopen the case in lower courts also failed. Siegel is the author of five previous books and winner of the 2002 Pulitzer Prize for feature writing. Formerly a national correspondent for the Los Angeles Times, he now directs the literary journalism program at the University of California, Irvine, where he is a professor of English. He lives in Los Angeles. Thomas M. Cooley Law School sponsors an American Inn of Court. Over 300 Inns of Court have been established in legal communities throughout the United States. Thomas M. Cooley Law School American Inn of Court meets at the law school monthly. The mission of the American Inns of Court is to sponsor excellence, professionalism, ethics, ability, and legal skills. "We get together once a month to break bread and discuss issues and share stories. The Cooley Inns of Court emphasizes mentoring in trying to fulfill the mission of the American Inns of Court," a spokesperson said. Published: Mon, Jul 26, 2010

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