ABFFE Book of the Month: Claim of Privilege: A Mysterious Plane Crash, a Landmark Supreme Court Case, and the Rise of State Secrets by Barry Siegel

The ABFFE Book of the Month for June is Claim of Privilege: A Mysterious Plane Crash, a Landmark Supreme Court Case, and the Rise of State Secrets by Barry Siegel (HarperCollins), 9780060777029.  Pulitzer Prize winning journalist Barry Siegel uncovers the mystery behind a 1948 plane crash and the Supreme Court’s landmark ruling in U.S. v. Reynolds, which formally recognized the State Secrets Privilege.  The case involved three civilian engineers who joined an Air Force crew who boarded a B-29 plane to test secret navigational equipment they were developing for the government.  The plane crashed in 1948 during testing, and all three engineers died.  In responding to the widows’ suit for damages, the government refused to release its accident reports and witness statements, falsely claiming they contained classified information.  In U.S. v. Reynolds, the Supreme Court upheld this claim and thereby set a legal precedent enabling federal agencies to refuse to turn over sensitive documents that they say might endanger national security.  Siegel reveals the dangerous consequences of government secrecy and how it threatens our civil liberties.

Interview with the Author

The 1953 landmark decision, U.S. v. Reynolds, formally recognized the State Secrets Privilege, until then unmodified common law.  How have presidents used this privilege over the last 50 years to their advantage?

The state secrets privilege has enabled the executive branch to conceal conduct, withhold documents and block civil litigation, all in the name of national security.  It has provided the Executive Branch a way to formalize an unprecedented power and immunity, to pull a veil of secrecy over its actions. Since 1973, the government has been asserting this privilege with increasing frequency, but the ramifications of Reynolds reach well beyond the direct assertions: Simply by voicing the words Reynolds and national security in a courtroom or legal brief, government lawyers can convince virtually all judges to defer to the executive branch.  A state secrets claim will invariably stop litigation in its tracks.

The Bush Administration has made more state secrets claims than any other administration.  Reynolds has provided a fundamental legal argument for much of the Bush Administration’s response to the 9/11 terrorist attacks.  Enemy combatants and “extraordinary rendition” victims have felt the breath of Reynolds.  So have the hundreds of detainees at the U.S. Navy base at Guantanamo Bay.  So have the millions of American citizens subjected to unauthorized domestic eavesdropping by the Naitonal Security Agency.  Time and again, the Bush Administration has ignored the Constitution and defied this country’s established balance of powers by using Reynolds as a shield.
 

Were you able to talk to any of the families of the civil engineers who died in the B-29 crash?  What new information did they bring to the story?

Over the course of five years’ research, I spent many hours talking and corresponding with the one surviving widow – Patricia Reynolds Herring – and with the offspring of the other engineers: Judy Loether, Susan Brauner and Cathy Brauner.  Pat Herring welcomed me to her home and willingly explored a painful past.  At her clambake on Cape Cod, Susan Brauner served up resonant memories along with delicious lobster rolls.  In the editor’s office at the Wellesley Townsman, Cathy Brauner shared photos, impressions and her deeply moving column, “This Is What the Terrorists Took.”

Judy Loether was the guiding light, providing a wealth of documents and memories and proving to be a tireless researcher.  Among the many documents she provided were revealing personal letters exchanged among the civil engineers about their secret research and hopes for the future.  Judy also provided dozens of letters exchanged among the widows, their advisors and their lawyer – these greatly helped me track the genesis of the original litigation.  I benefited also by letters written by one engineer to his brother – provided to me by that brother half a century later.  Finally, all those involved in the 2003 petition shared with me their email exchanges, which enabled me to recreate the progress of that courageous effort to right a wrong from the past.
 

How does Claim of Privilege resonate with the anxieties people feel post-9/11?

There are clear, strong connections between the apocalyptic anxieties of the Cold War and the post-9/11 era.  People today, reading about the Cold War era in Claim of Privilege, will be struck by how much it sounds like current times.  In both eras, people felt their very world was at risk.

Just as the Cold War anxieties parallel post-9/11 anxieties, so too do the government’s responses in both eras.  Then as now, citizens suffered the violation of civil liberties and the abuse of constitutional protections as the Executive Branch, acting in the name of national security, unilaterally expanded its powers.  The “suspects” list, loyalty oaths and HUAC hearings of a past era eerily resemble the Guantanamo Bay detentions, extraordinary renditions, and unauthorized domestic eavesdropping of our current times.
 

What should the average person know about the State Secrets Privilege, and how does it affect their civil liberties?

By invoking the state secrets privilege, the government can withhold documents, even from judges, and thereby stop litigation in its tracks.  Because judges rarely even ask to see the disputed documents, the privilege essentially gives the Executive Branch unilateral power to decide for itself what is “secrete” and not for public eyes.  The privilege ends up allowing the Executive Branch to be the judge of whether its own claim is well founded.  As a result, the government can prevent citizens from seeking redress in the courts when they feel their rights have been violated.
 

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