Cornerstone 'state secrets' ruling challenged

Cornerstone ‘state secrets’ ruling challenged

• Heirs of victims killed in an Air Force crash claim the high court’s 1953 decision to bar access to records was based on false affidavits.

March 4, 2003 — A 1953 U.S. Supreme Court decision, considered a landmark decision on secrecy, was based on false government information, according to a petition filed with the court last week by widows and heirs of the victims of a U.S. Air Force plane crash who now have access to recently declassified records that they were forbidden to see at the time.

The “state secrets privilege” established by the U.S. Supreme court in United States v. Reynolds was based on false affidavits, according to the papers. The privilege defined by the high court allows the government to withhold “military matters which, in the interest of national security, should not be divulged,” even to a federal court.

The case originated from the 1948 crash of a U.S. Air Force B-29 Superfortress bomber, which was flying a secret mission when it spun out of control and crashed in rural Georgia. Nine of the13 people on board the plane were killed. The widows of three of the victims sued the U.S. government, but they were denied a copy of the accident report they needed to pursue their case.

The Air Force withheld the reports, claiming that they contained information about the plane’s secret mission and top secret electronic equipment on board that had to be protected.

“But it turns out that the Air Force’s affidavits were false,” according to a petition filed by surviving widows and heirs of the crash victims.

The declassified report, obtained by one of the petitioners three years ago, showed that the secret project was unrelated to the plane crash, which was instead caused by errors made by the base commander, the mechanics and the crew.

The executive branch’s right to withhold secrets from judges is now a well-established principle, in large part because of this case. It is uncertain whether the court would be willing to review it.

The petitioners state that “the only issue this Court must confront today is whether it will tolerate a fraud — a fraud that struck at the integrity of the Court’s decision-making process and that cheated three struggling widows and their children out of that which was rightly theirs.”

(Petition for a writ of error to the Supreme Court; Petitioner’s attorney: Wilson M. Brown, Drinker, Biddle and Reath LLP, Philadelphia, Pa..) — GS

© 2003 The Reporters Committee for Freedom of the Press

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