OVERVIEW by me from the full transcript
A plane crash, a supposed secret mission, a claim of negligence, a refusal to turn over accident report, and declassification 40 years later
This week (June 2009), when the Attorney General [Alberto Gonzalex] appeared before the Senate Judiciary Committee, he told them that any day now, he'll be delivering the Administration take on how to change the state secrets privilege.
The State Secrets Privilege is--- If you are suing the US Government, the Government can claim that taking your case to court would reveal sensitive national security information. If they do that, simply by making that claim, they can get your case thrown out of court. The judge won't even usually look at the evidence to see if the Government is fibbing.
Under the Bush administration, this increased dramatically. They got judges to throw out lawsuits regarding the torture and rendition of detainees in the War on Terror, over Guantanamo, over the wiretapping of American citizens.
Barry Siegel
Yeah, well, the state secrets privilege came about as a result of a 1953 Supreme Court decision, US v. Reynolds.
A US Air Force B-29 in October 1948 took off in Georgia to test an experimental navigation system, radar system. Three civilian engineers from RCA were onboard as part of the test team. The plane engines caught fire. The plane crashed over Waycross, Georgia, October 6, 1948.
The widows of the three civilian engineers onboard sued the Government: negligence. During discovery process, the widows asked for the Air Force accident report. The Government wouldn't turn it over, wouldn't turn over the accident report. A Federal District judge, a very brave one, William Kirkpatrick, who was hearing the case, ordered the Government to produce the document. He said you can just turn it over to me in private. I'll look at it in chambers. The Government wouldn't hand it over even to the judge to look at in private in chambers.
Judy Loether, daughter of Al Payla started researching the case online. And I said, well, what do I want to look up tonight? And for the first time, I typed in the combination of B-29 plus accident, and I had never done that before. And the first hit was accidentreport.com. And this page comes up. Accident reports from military crashes from 1918 through 1955.
There was nothing in there about the secret equipment or the secret mission of the plane other than the mention that there was secret equipment on the plane. And that, of course, was in the newspapers.
Ira Glass Instead of that stuff, what was in the accident report was a stark, very detailed account of Air Force negligence. There was a lot of negligence. This particular B-29 had a history of trouble: fuel leaks, faulty engines. It had been repeatedly grounded. The engines on all B-29s had a tendency to overheat and were supposed to get special heat shields installed to fix that, but this plane never got them. On this flight, the engines caught fire, and the pilot made some errors that compounded that problem and sent the plane into a spin.
Ira Glass
All of these reports had been declassified in the 1990s.
Ira Glass Instead of that stuff, what was in the accident report was a stark, very detailed account of Air Force negligence. There was a lot of negligence. This particular B-29 had a history of trouble: fuel leaks, faulty engines. It had been repeatedly grounded. The engines on all B-29s had a tendency to overheat and were supposed to get special heat shields installed to fix that, but this plane never got them. On this flight, the engines caught fire, and the pilot made some errors that compounded that problem and sent the plane into a spin.
Ira Glass In his reporting, Barry Siegel lists some of the other kinds of cases that have fallen under the state secrets privilege since this precedent was set. "In 1990," he writes, "families of 37 crew members who were killed by Iraqi missiles hitting the USS Stark sued the contractors responsible for the ship's antimissile system. The Government said trying the case would reveal state secrets, and this got it thrown out of court.
**In 2000, a CIA employee sued the agency for gender discrimination. The Government said trying the case would reveal state secrets, and this got it thrown out of court.
**In 2003, a senior engineer said a Defense contractor had submitted false test results on an antimissile vehicle. The Government said trying this case would reveal state secrets and got that thrown out of court."
And so, Siegel says, "Its disturbing that in the case that made all this possible--US v. Reynolds-- the Government said that it couldn't turn over an accident report because this would reveal state secrets. But there seemed to be no state secrets at all in the accident report. At that point, it wasn't even a secret that B-29s were having these terrible mechanical problems.
In 2008, Judy Loether testified before Congress. And when Senators Edward Kennedy and then Republican Arlen Specter introduced a bill to regulate the state secrets privilege once and for all, a bill that would tell judges not just to take the Government's word when it claims that a state secret is involved in the case, but actually look at the evidence to be sure that it's true, they cited what happened in Reynolds.
This is from the press release, quote: "Recently declassified information about the Supreme Court's leading decision on the state secrets privilege-- US v.Reynolds-- provides an early example of executive abuse of the privilege. That kind of abuse will no longer be possible under the State Secrets Protection Act."
A version of the bill came out of a House subcommittee this week. The bill's on the schedule to be marked up next week by the Senate Judiciary Committee.
FULL TRANSCRIPT BELOW
We've arrived at Act Two of our show. Act Two, The Secret Life of Secrets.
This week, when the Attorney General appeared before the Senate Judiciary Committee, he told them that any day now, he'll be delivering the Administration take on how to change the state secrets privilege. And I don't know about you, but for me, every time this comes up in the news, I have to be reminded what the hell the state secrets privilege actually is in the first place. And every time I read about it and relearn it, I think to myself, oh, right. That's one of those legal things that anybody can understand.
Basically, it's this: If you are suing the US Government, the Government can claim that taking your case to court would reveal sensitive national security information. If they do that, simply by making that claim, they can get your case thrown out of court. The judge won't even usually look at the evidence to see if the Government is fibbing.
Democrat and Republican presidents have both used this to get all kinds of cases dismissed. Under the Bush administration, this increased dramatically. They got judges to throw out lawsuits regarding the torture and rendition of detainees in the War on Terror, over Guantanamo, over the wiretapping of American citizens.
Barry Siegel
Yeah, well, the state secrets privilege came about as a result of a 1953 Supreme Court decision, US v. Reynolds.
Ira Glass
This is Barry Siegel, a reporter who wrote about the true story of US v.Reynolds for the LA Times and later in a book called Claim of Privilege. It is very possible that if we could somehow send his book back in time to the year 1953 and let the Supreme Court justices read what really happened in US v. Reynolds,they would have decided the case differently. Some important facts have come to light in the last half century about the case.
As a public service right now, in case any of you hearing my voice do someday get teleported back to the year 1953, we present now the true origin of US v.Reynolds.
Barry Siegel
A US Air Force B-29 in October 1948 took off in Georgia to test an experimental navigation system, radar system. Three civilian engineers from RCA were onboard as part of the test team. The plane engines caught fire. The plane crashed over Waycross, Georgia, October 6, 1948.
The widows of the three civilian engineers onboard sued the Government: negligence. During discovery process, the widows asked for the Air Force accident report. The Government wouldn't turn it over, wouldn't turn over the accident report. A Federal District judge, a very brave one, William Kirkpatrick, who was hearing the case, ordered the Government to produce the document. He said you can just turn it over to me in private. I'll look at it in chambers. The Government wouldn't hand it over even to the judge to look at in private in chambers.
Ira Glass
Because the Government would not comply with his order to turn over the accident report, the judge declares the widows the winners in this case by default. An appeals court agrees. It gets to the Supreme Court, whose decision you already know. It overturns the lower two courts, finds in favor of the Government, says the Government does not have to hand over the accident report once it claims that this would reveal state secrets.
But understand what happens next. There's an important thing you need to keep in mind about this Supreme Court decision.
Barry Siegel
Keep in mind, in 1953, the Supreme Court in ruling for the Government never itself asked to see the accident report. It voted in 1953 to believe the Government when it said it contained state secrets. And that's the foundation for the whole state secrets privilege in US v. Reynolds. It says that we have to trust the Government. If they can convince us that national security is at risk, then you don't have to even ask for the documents. So they never saw it. No one ever saw the accident report back then.
So 50 years passed. The families of these three civilians who had perished in the plane, they tried for years to find out more of what happened on that plane. They never could. The children of the engineers, who really never knew their fathers, always wondered who they were and what had happened to them. One of them particularly, Judy Loether, she was seven weeks old when her father Al Palya died.
Judy Loether
I knew my father had died in a plane crash, and I knew it was an Air Force plane, and I knew that there was a secret project.
Ira Glass
This is Judy Loether. Now, of course, she's grown. She lives in a town not far from Boston.
Judy Loether
The biggest question I had was what secret project were they doing on that plane? I mean, you know, what did my father die for?
Ira Glass
Over the years, she'd go into little spurts of looking into this. She exchanged letters with a man who had survived the crash. She went through her father's old papers and technical manuals. And then in the late 1990s, she got a computer and started searching the internet. She learned all about B-29s and about the bomb site device that her dad worked on as an engineer. It made her feel closer to him to see pictures of these things that he had made. She printed stuff out. She kept it in a notebook. And then one night in February 2000, she sat down at a computer.
Judy Loether
And again, my cursor was on that blank box. And I said, well, what do I want to look up tonight? And for the first time, I typed in the combination of B-29 plus accident, and I had never done that before. And the first hit was accidentreport.com. And this page comes up. Accident reports from military crashes from 1918 through 1955.
Ira Glass
All of these reports had been declassified in the 1990s.
Judy Loether
And I remember looking at those words and reading them like three times and thinking 1948. Wow! This place is going to have the report of that plane crash?
Ira Glass
Now, at the time, did you know that this report had been the subject of a lawsuit and that the Government refused to give your mom and the other widows this very accident report that suddenly you're actually able to get from this guy for $60-something?
Judy Loether
I hadn't a clue. I knew there had been a lawsuit, but that's all I knew.
Ira Glass
And did you know that the lawsuit turned into this famous Supreme Court precedent?
Judy Loether
No. I had no idea.
Barry Siegel
Two weeks later, Judy Loether gets mail from him, this accident report that her mom and the other widows had vainly sought 50 years before. And what's interesting about this is that she's kind of disappointed when she pulls out the accident report because she's not looking for the cause of the accident. What she really wants to know is what the secret thing was that her dad was doing on that plane. It was just a way to get to know about her dad. And to her great frustration, when she pulls out the accident report and reads it is that there's no reference at all to the secret project her father was working on.
Judy Loether
There was nothing in there about the secret equipment or the secret mission of the plane other than the mention that there was secret equipment on the plane. And that, of course, was in the newspapers.
Ira Glass
Instead of that stuff, what was in the accident report was a stark, very detailed account of Air Force negligence. There was a lot of negligence. This particular B-29 had a history of trouble: fuel leaks, faulty engines. It had been repeatedly grounded. The engines on all B-29s had a tendency to overheat and were supposed to get special heat shields installed to fix that, but this plane never got them. On this flight, the engines caught fire, and the pilot made some errors that compounded that problem and sent the plane into a spin.
Disturbed and saddened, Judy thought that she should share this document with other families from the crash, and from newspaper clippings, she learned of another woman whose father died that day: Susan Brauner. When she met Brauner, it was Brauner who told her about the Supreme Court decision.
Judy Loether
Within a half an hour of when I got home, I was reading that decision. And it was that moment, as I'm reading through the decision and it's all hinging on this accident report which I have, and I'm reading it, and the justices are saying in their decision it's a reasonable assumption that this accident report talks about the secret equipment and the secret mission, and I'm saying no. No, it doesn't talk about that at all. I couldn't understand it. It just really upset me. And then I think the fact that Reynolds was being used over and over again by the Government, it was such an important case, and it was based on this lie.
Ira Glass
In his reporting, Barry Siegel lists some of the other kinds of cases that have fallen under the state secrets privilege since this precedent was set. "In 1990," he writes, "families of 37 crew members who were killed by Iraqi missiles hitting the USS Stark sued the contractors responsible for the ship's antimissile system. The Government said trying the case would reveal state secrets, and this got it thrown out of court.
In 2000, a CIA employee sued the agency for gender discrimination. The Government said trying the case would reveal state secrets, and this got it thrown out of court.
In 2003, a senior engineer said a Defense contractor had submitted false test results on an antimissile vehicle. The Government said trying this case would reveal state secrets and got that thrown out of court."
And so, Siegel says, "Its disturbing that in the case that made all this possible--US v. Reynolds-- the Government said that it couldn't turn over an accident report because this would reveal state secrets. But there seemed to be no state secrets at all in the accident report. At that point, it wasn't even a secret that B-29s were having these terrible mechanical problems.
Barry Siegel
It's really interesting, US v. Reynolds based on a lie. The very case that establishes the right of the state secrets privilege is a perfect example of why the Government shouldn't have that privilege.
Ira Glass
As for Judy, the more she thought about it, the more she was bothered by the fact that the Government's lawyers back in the 1950s must have read the accident report themselves, so they must have known that the Air Force was negligent. But when the lower courts found them negligent and awarded the widows some money, these Government lawyers kept appealing that decision, all the way up to the Supreme Court.
Judy Loether
That again is disturbing to me, because it's not like they were some corporation. These were three widows whose husbands were dead because of their negligence, but they were going to get their precedent at our cost.
Ira Glass
So Judy and two other families from the crash went back to the Philadelphia law firm that had originally represented her mom and the other widows back in 1953. And together, they filed a new petition in the Supreme Court. Not asking that US v. Reynolds cease to be a precedent. Too many other cases had agreed with the finding in Reynolds that that wasn't really an option. And the goal wasn't to overturn the state secrets privilege. Instead, they wanted the court to acknowledge that the Government had lied about the contents of the accident report, that the Government had committed fraud before the Supreme Court, and they wanted the court to award monetary damages that should have gone to the widows back then.
Barry Siegel
This gets a little technical into the legal, but the Supreme Court invited the Solicitor General--
Ira Glass
The Solicitor General, of course, the administration's lawyer who deals with the Supreme Court.
Barry Siegel
--to respond to this petition. And the Solicitor General's argument essentially said we are not in a position now, us sitting here 50 years later, to know why the Air Force made a state secrets claim. We're not experts, and we can't know what their reasons were 50 years before.
Ira Glass
The Supreme Court declined to hear the case.
Ira Glass
So even though the Supreme Court refused to take this case, can their petition have an effect on the law in some way? Can it be cited? Has it been cited?
Barry Siegel
Yes. That's exactly what their legacy is. I think that they didn't prevail in the Supreme Court. They prevailed in the two ways that they probably most were seeking some effect. First of all, they sure got their story out. And the other thing that they did is that lawyers now involved in litigation with the Government have started to talk about the origins of the US v. Reynolds decision. Now when the Government waives the state secrets flag in court, the other side can get up and say, well, wait a second. And it has happened.
I can tell you there was a recent Ninth Circuit Court of Appeals decision, which finally-- one of the few rare ones, which did limit a Government state secrets claim.
Ira Glass
The court said, in this case, that they wouldn't just take the Government's word about whether there were secrets in the documents being discussed. The Government would have to show the documents to the judges, one by one, in private.
Barry Siegel
In this decision in the Ninth Circuit, which just came out in the last few weeks, there was a footnote in which these appellate judges cited what you and I are talking about today. They cited the fact that US v. Reynolds-- it said the dubious origins of US v. Reynolds.
Ira Glass
In 2008, Judy Loether testified before Congress. And when Senators Edward Kennedy and then Republican Arlen Specter introduced a bill to regulate the state secrets privilege once and for all, a bill that would tell judges not just to take the Government's word when it claims that a state secret is involved in the case, but actually look at the evidence to be sure that it's true, they cited what happened in Reynolds.
This is from the press release, quote: "Recently declassified information about the Supreme Court's leading decision on the state secrets privilege-- US v.Reynolds-- provides an early example of executive abuse of the privilege. That kind of abuse will no longer be possible under the State Secrets Protection Act."
A version of the bill came out of a House subcommittee this week. The bill's on the schedule to be marked up next week by the Senate Judiciary Committee.
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