Ben Turney

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April 24, 2004

The Secret of the B-29

If you're at all curious about the legal origins of the national security state, an excellent place to start is Barry Siegel's April 18 and 19 L.A. Times series "The Secret of the B-29." The landmark 1953 Supreme Court ruling that formally established the government's "state secrets" privilege, U.S. vs. Reynolds, was based on the goverment's claim that Air Force accident reports for a 1948 B-29 crash contained "military secrets" so sensitive not even the district court should see them.

In 2000 Judy Palya Loether, the daughter of one of the flyers killed in the 1948 B-29 crash, came across a web site that was selling copies of Air Force accident reports. From Siegel's articles:

She e-mailed the operator of the website, who had bought the old microfilmed reports and started a small business selling them. In return for $63, she received 220 pages and 15 photographs. By the end of February, Judy Palya Loether held in her hands the Air Force accident report that her mother and the patrician Philadelphia lawyer Charles Biddle had so strenuously but vainly sought from the government half a century before.

For a moment, she hesitated to pull it from its large envelope, fearing what gruesome details it might contain. But pull it she did.

As she began to read, she felt disappointment. There was nothing about confidential research being done on the plane. In fact, other than a reference to removing secret equipment from the crash site, there wasn't anything about her father's project.

Shoot, Judy thought. This doesn't have what I want.

She kept reading though, and as she did, her consternation grew. While this report didn't describe anything secret, it seemed to involve all sorts of mistakes and negligence. It looked to Judy as if an awful lot of bad things had happened in that plane. She understood human mistakes, such as the pilot turning off the wrong engine. But the maintenance supervisors � why hadn't they complied with those technical orders? Why hadn't they installed heat shields to fix the B-29 engines' fire hazard?

Air Force affadavits claiming the accident reports contained "military secrets" had been false.

In telling the Court otherwise, the Air Force lied�. It is for this Court in exercise of its inherent power to remedy fraud, to put things right.

...By asking the Supreme Court to "remedy fraud," Judy Palya Loether and others in the crash victims' families were taking dead aim at the factual foundation of the state secrets privilege. Long ago, Judy's mother and two other widows had tried to challenge the power of the federal government. Now here came the families once again.

The article includes a history of the fatal flight, including the troubled past of the aircraft "that had spent more time in maintenance than in the air;" a telling of the midcentury efforts of a World War I ace to get the government to compensate three of the aircrew's widows, an effort that led all the way to the Supreme Court; and in describing the government's current response to the families' efforts to get the Court to reverse its 50-year-old error, a good background on the role U.S. vs. Reynolds plays in the current deference (judicial and otherwise) to "national security" concerns.

Posted by Brenden at April 24, 2004 12:04 AM

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