J. L. BELL is a Massachusetts writer who specializes in (among other things) the start of the American Revolution in and around Boston. He is particularly interested in the experiences of children in 1765-75. He has published scholarly papers and popular articles for both children and adults. He was consultant for an episode of History Detectives, and contributed to a display at Minute Man National Historic Park.

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Sunday, December 30, 2012

A Modern Claim of Privilege

I’m departing from the Revolutionary era to talk about a book on another period because it raises important issues about the value of historical study within our constitutional system. Claim of Privilege: A Mysterious Plane Crash, a Landmark Supreme Court Case, and the Rise of State Secrets was written by Barry Siegel and published in 2008. It’s about the Supreme Court case known as United States v. Reynolds, or just Reynolds.

In 1948 a U.S. Air Force B-29 Superfortress crashed in Waycross, Georgia. Nine people died, three of them civilians working on new radar equipment that the plane was supposed to test. Those three civilians’ widows sued for negligence, asking that the government turn over its accident report. [When I was growing up, my parents were colleagues of one of those widows, though nobody talked to me about her past.]

The Air Force argued in court that it shouldn’t have to turn over the accident report, eventually invoking “state secrets.” Though its lawyers would not lay out the details, they implied that the report would reveal important information about the equipment being tested or the capacities of the B-29, information that would benefit the nation’s enemies.

Judges had been dealing with sensitive material for centuries. They usually examined the documents privately to determine if they were really relevant to the case. If so, they could limit discussion of those documents in camera, or in a closed court. Judges could also appoint independent experts to examine the material. But the Air Force didn’t want the court to try any of those methods.

The original trial judge and the appeals court both ruled in favor of the plaintiffs, saying that the government had to default on the case if it refused to turn over the pertinent documents. But the U.S. Supreme Court, which was dealing with the Rosenberg spy case at the same time, decided in 1953 by a vote of 6-3 that the government’s claim of the importance of secrecy trumped everything else.

In essence, the Reynolds case ruled that if the federal government declared that certain material was important for national security, the judge had to accept that privilege and not penalize the government as it would another party to a lawsuit. The logic for this decision rested on the belief that the government would not lie about the importance of any documents simply to avoid embarrassment or liability.

But in the Reynolds case the Air Force’s lawyers lied. In 2000, as Siegel recounts in Claim of Privilege, the government declassified the accident report. The document that the Air Force insisted had to remain completely secret turned out to say almost nothing about the experimental equipment the dead men had been hoping to test; that equipment wasn’t involved in the fatal accident. Instead, that report listed several problems with the airplane, the pilots’ choices, and the safety training—issues central to the widows’ negligence lawsuit.

The result is a breakdown between historical fact and legal doctrine. In law, the Reynolds case provides the basis of the U.S. government’s expanded claims for secrecy privileges over the last sixty years. It turns certain “state secrets” claims into legally unquestionable facts.

In history, however, the Reynolds case shows that government officials did use a false claim of national security to protect themselves from embarrassment. That’s an obvious historical fact. The actual events show we should be more skeptical about government claims of privilege, not more deferential.

National security obviously requires that the government be able to keep some secrets for a limited time. But in this test the Supreme Court, choosing to work blind and trust the military, drew the line in the wrong place. Unfortunately, history can’t overturn law; only more law, driven by public opinion, can. And the Reynolds precedent, having been built on in other cases, has become more entrenched.

Siegel’s book is part mystery investigation, part courtroom drama. It’s not always exciting, but it’s a thought-provoking and ultimately frustrating read.

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