Claim Of Privliege

Barry Siegel, “Claim Of Privilege: A Mysterious Plane Crash, A Landmark Supreme Court Case, And The Rise Of State Secrets”, Harper Collins, 2008, 314 Pages


On October 6, 1948, a U.S. Air Force B-29 Superfortress crashed near Waycross Georgia soon after takeoff, killing three civilian engineers and six crew members. In June 1949, the engineers' widows filed suit against the government, determined to find out what exactly had happened to their husbands and why the three civilians had been on board the airplane in the first place.

The Air Force refused to hand over any documents, claiming they contained classified information. The legal battle ultimately reached the Supreme Court, which in 1953 handed down a landmark decision (U.S. v. Reynolds ) that would, in later years, enable the government to conceal gross negligence and misconduct, block troublesome litigation, and detain criminal suspects without due-process protections.

Over the next fifty years, the families of those who died in the crash never stopped wondering what had happened in that B-29. Then, in 2000, came their stunning discovery: The documents that three widows had vainly sought half a century before were now declassified and available: there was absolutely nothing in them that was sensitive, secret information other than the documentation of the governments gross maintenance negligence. They determined to take on the government once more—and to ask the Supreme Court to remedy its own fifty-year-old error. They lost. When you think about it, they had to lose, although the author does not make this point: Too many subsequent decisions have resulted from this original contaminated case.

My Notes:

Pg. ix: The landmark 1953 Supreme Court U.S. v. Reynolds decision formally recognized and established the framework for the government’s state secrets privilege—a privilege that for decades had enable federal agencies to conceal conduct, withhold documents, and block civil litigation all in the name of national security. This book establishes that that decision is based on deliberate lies.

Pg. 85: Every great crisis brings a period of public hysteria, especially fanned by the media and politicians. In the early days of the Republic we had the alien and sedition laws. After WWI the Ku Klux Klan became particularly active. WWII brought the incarceration of the Japanese; after the war we had McCarthyism. Now we have the aftermath of 9/11.

Pg. 101: The Communists took over China in the summer of 1949. That September the Soviet Union detonated its first atomic bomb. On October 1, Mao Zedong declared the formation of the People’s Republic of China—six days later, the German Democratic Republic (East Germany) proclaimed its existence. It is in this climate that the B-29 crash litigation began.

Pg. 176: In the U.S. v. Reynolds decision, Chief Justice Vinson stated that we must believe the government. Vinson held, when the government claims this B-29 accident report would reveal state secrets, we must believe them without examining the documents.

Pg. 195: Scholars differ when calculating state secrets claims—they apply varying definitions and criteria—but according to one count, in the twenty-three years between the Reynolds decision and Carter’s election in 1976, there were five cases in which the government invoked privilege; between 1977 and 2001, there were sixty-two.