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Claim of Privilege A Mysterious Plane Crash, a Landmark Supreme Court Case, and the Rise of State Secrets Barry SiegelHarper: 384 pp., $25.95

June 22, 2008|Edward Lazarus | Edward Lazarus, a lawyer in private practice, is the author of "Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court."

IN LEGAL circles these days, it is much in vogue to praise the doctrine of stare decisis -- a fancy Latin term for giving great deference to past court decisions rather than rethinking legal principles anew. This idea feels quite benign. What could be terribly wrong or dangerous about yielding to the accumulated wisdom of the past?

In "Claim of Privilege: A Mysterious Plane Crash, a Landmark Supreme Court Case, and the Rise of State Secrets," Pulitzer Prize-winning (and former Los Angeles Times) reporter Barry Siegel shakes us out of this complacency. Past court decisions, he vividly reminds us, sometimes bubble up from a swamp of unexamined lies and exaggerated fears. Yet we invoke them broadly, reflexively and with great potential consequence, as though they automatically deserve our obedience and approbation.

The focus of Siegel's carefully researched book is the 1953 Supreme Court decision in United States vs. Reynolds, which first enshrined into law the "state secrets privilege." Under this doctrine, the executive branch may refuse to turn over evidence to individuals suing the United States (and often get the claims dismissed) simply by asserting that release of the information sought after would threaten national security. U.S. Chief Justice Fred Vinson's opinion, issued at the height of Cold War hyperconcern with national defense, goes so far as to instruct trial judges that, in some circumstances, they should accept the executive branch's privilege without conducting their own private examination of the documents at issue to test the plausibility of the claim.

As Siegel accurately observes, the Reynolds decision is "an act of faith." It makes sense if we generally trust executive branch officials to invoke the doctrine only when national security is genuinely at stake and not merely to cover up governmental blunders or protect an administration's political interests. And therein, Siegel painfully demonstrates, lies the rub.

The Reynolds case arose from the October 1948 crash of a B-29 Superfortress bomber over Waycross, Ga. The plane was on a secret test flight associated with the government's race to design a long-range guided missile system to bolster its Cold War arsenal. Of the 13 passengers and crew, nine were killed, including three civilian engineers from Radio Corp. of America, who were working on the sophisticated electronics necessary for the enterprise.

The widows of the civilians sued the government under the Federal Tort Claims Act, alleging that their husbands' deaths had resulted from the government's negligence and seeking compensation of at least $300,000 apiece (that's more than $2 million in today's currency). Represented by the ultra-establishment Philadelphia attorney Charles J. Biddle, the widows naturally sought access to the witness statements and accident reports prepared by government investigators who had flocked en masse to the crash site. The widows had no idea why the military plane had precipitously fallen from the sky -- and these reports were surely the best evidence on the subject.

The government immediately resisted turning over the reports, but not because they contained state secrets. Instead, the U.S. initially claimed that revealing these materials as part of a lawsuit against the government would have a deleterious effect on future inquiries into aviation safety because, in the absence of confidentiality, witnesses and investigators would pull their punches.

It was only after it became apparent to Justice Department officials that this strategy was not likely to succeed -- more than a year into the case -- that they abruptly declared that the witness statements and investigative reports contained national security secrets, that disclosure would endanger the national defense and, most important, that the executive branch's decision to invoke the state secrets privilege could not be reviewed by the judicial branch.

The lower courts rejected the executive branch's claim of absolute power: They declared it to be inconsistent with our system of constitutional checks and balances. These courts gave the executive branch a choice: Either turn over the documents to the trial judge for a private assessment of the privilege claim or default on the widows' lawsuit and pay damages. But the Supreme Court saved the government's bacon, declaring, in pseudo-Solomonic fashion, that courts should ordinarily (and in the widows' case) defer to the executive branch's claim without further inquiry. Deprived of access to key evidence, the widows settled for a modest sum.

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