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THE SECRET OF THE B-29

How the Death of Judy's Father Made America More Secretive

A plane crashes at the dawn of the Cold War, and the government seeks a special legal privilege. Its claim sows the seeds of the Patriot Act.

April 18, 2004|Barry Siegel | Times Staff Writer

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."

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