NEWS MEDIA UPDATE · THIRD CIRCUIT · Secret Courts · Sep. 28, 2005
Original ‘state secrets’ case papers not ‘fraud on court’
Sep. 28, 2005 · A federal appellate court panel, saying there is an “obviously reasonable” truthful interpretation of statements made by the Air Force in the 1953 lawsuit that prompted the U.S. Supreme Court to create a “state secrets” privilege, has refused to find a fraud upon the court in the landmark case despite revelations in declassified records of a cover-up. The ruling, by a three-judge panel of the U.S. Court of Appeals in Philadelphia (3rd Cir.), was unanimous.
Declassified documents showed the 1948 crash of a B-29 Superfortress bomber in rural Georgia was caused by negligence of the base commander, mechanics and crew. Widows of three civilian engineers who were among those killed in the crash were unable to recover full damages for the deaths of their husbands because the military claimed release of the accident reports would reveal “state secrets” not to be divulged in the interest of national security. The government would not even permit the judge handling the survivor claims to see the reports.
The privilege articulated by the high court in Reynolds v. U.S. has been used in at least 900 cases in which the government claims that it cannot provide information to the court because doing so would reveal “state secrets.”
In 2000 an heir to one of the men killed in the bomber crash viewed the declassified records that showed the military affidavits to the court were false. They referred without detail to “secret electronic gear” on board but otherwise described the negligence that caused the accident. The living widow of one of the engineers and the children of all three men killed first asked the U.S. Supreme Court to revisit the case and throw out its decision in Reynolds v. U.S. The high court refused to take the case.
Attorneys for the surviving widow, Patricia Herring, formerly Patricia Reynolds, and other heirs, then asked the federal district court in Philadelphia and then the appeals panel to find a fraud on the court in the original case. They were unsuccessful.
The district court found that the records, read in their historical context, could have revealed secret information about the equipment being tested on the plane, and that the state secrets privilege could have referred to both the mission and the workings of the B-29.
The appellate panel on Sept. 22 found a “necessarily demanding” standard for proof of fraud on the court: It must be intentional; by an officer of the court; directed at the court itself; and in fact deceptive to the court.
Mere perjury by the government would not be enough to prove fraud on the court, the panel ruled. If information actually revealed sensitive information about the mission and the equipment involved, the privilege could apply. In the Reynolds case, because there is an “obviously reasonable truthful interpretation” of the statements made by the Air Force, the court refused to find fraud.
(Herring v. U.S.; Plaintiff’s attorney: Wilson Brown, Philadelphia, Pa.) — RD