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Government denies fraud in landmark 'state secrets' decision

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Government denies fraud in landmark ‘state secrets’ decision

  • The U.S. government on Jan 23 challenged allegations that the U.S. Supreme Court’s application of the “state secrets privilege” in a landmark 1953 case was based on fraudulent information.

Jan. 30, 2004 — The U.S. government on Jan. 23 denied allegations that a 1953 Supreme Court ruling laying the foundation for how the government now uses the “state secrets privilege” to protect information was rooted in fraud.

The government asked the federal district court in Philadelphia to dismiss a case brought by survivors and heirs of the victims of a 1948 air crash. They claim that recently declassified records show that Air Force officials lied in affidavits before the Supreme Court more than 50 years ago in order to prevent the survivors from learning the cause of the crash.

In United States v. Reynolds, the Supreme Court said that under the state secrets privilege the executive branch may refuse to reveal information concerning “military matters which, in the interest of national security, should not be divulged.”

The Court said that the privilege protects information about the deaths of three engineers killed in a bomber crash in 1948 in Georgia. Their relatives, who sued for the information, could not have it. With its arguments to the court, the government provided affidavits of Air Force personnel that the records detailed the crew’s “secret mission” and would reveal information about secret electronic equipment on board.

Survivors and heirs of the engineers who died, including widow Patricia Herring, said last year that, according to newly declassified information, the government won the case by improperly shielding itself under a fraudulent claim of national security. Herring originally filed the 1949 case that was ultimately decided by the Supreme Court .

The B-29 Superfortress bomber crash killed nine of the 13 crewmen on board because of an engine fire. Widows of the three civilian research and development engineers, the only civilians on board, sought the accident reports for a suit against the government..

Their request was denied by the Air Force, which subsequently filed the affidavits with the Supreme Court contending that reports withheld should be deemed classified and protected from disclosure. The Court cited the affidavits and ruled for the government, establishing the executive branch’s right to keep “sensitive” information secret.

The survivors asked the Supreme Court to revisit its decision in light of the new information, uncovered by one of the heirs in 2000, but it refused to do so.

They then filed a new complaint in the district court claiming that the newly discovered records do not in any way corroborate the affidavits. In addition, they said the records show that the secret mission was immaterial to the crash.

“Contrary to the statements in the Affidavits, on which the Supreme Court expressly relied, not one of the documents . . . contain[s] any secret or privileged information,” the complaint states. “The documents consist, instead, of admissions of negligence on the part of the Air Force.” The Air Force made knowingly false statements, with “reckless disregard for the truth.”

The government asked the district court to dismiss the case, saying that the plaintiffs were not qualified to determine the declassified document’s sensitivity. Although the documents appear “trivial” today, that alone is not indicative of their level of sensitivity a half-century ago, it said.

Government attorneys also said that even if their witnesses committed perjury, it did not amount to “fraud upon the court.”

(Herring v. United States; Plaintiff’s attorneys: Wilson Brown III and Jeff Almeida, Drinker, Biddle & Reath LLP, Philadelphia) AB

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