State Secrets

The state secrets privilege is an evidentiary rule. It is the right of the government to declare that specific evidence is to be fully excluded from a legal case, based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information which might endanger national security. When state secrets privilege is used, judges rarely view the evidence (as would happen in an in camera review). The result is that, if a government official wants to fraudulently assert the state secrets privilege, they will never be caught. Unless, someday, the classified records are declassified….

United States v. Reynolds

The first case in which the U.S. government used this privilege was United States v. Reynolds, in 1953. The fraudulent misuse of the state secrets privilege was fully exposed fifty years later, when records were declassified in 2000. Here is the story…File:Boeing B-29 Superfortress Bockscar 2 USAF.jpg

In October 1948, the U.S. had won World War II, but an uneasiness was developing about the Soviet Union. The military was secretive. Three defense contractors of the Radio Corporation of America were killed in the crash of a B-29 Superfortress near Waycross, Georgia. Their widows filed an action under the Federal Tort Claims Act, seeking damages. As part of this action, they requested production of accident reports concerning the crash. The Air Force declared that the release of such details would threaten national security. The government continued to refuse to produce the documents, and the court granted a directed verdict for the government to pay $225,000 to the widows. This judgment was then affirmed by the United States Court of Appeals for the Third Circuit. The U.S. Government then appealed to the United States Supreme Court; they reversed the decision, and remanded it back to the trial court. A settlement was reached in June 1953, with the widows, who received an aggregate sum of $170,000 in exchange for a release of liability to the Government.

The key document was never produced because a military Judge Advocate General filed an affidavit stating that the material could not be furnished “without seriously hampering national security.” This affidavit, coupled with five years of delay, was sufficient to compel settlement. Nearly fifty years later, when the records were finally declassified, it became apparent that there was nothing secret in the concealed records. The ‘secret’ was what had been suspected: three husbands (and fathers) had died due to a disclosable mechanical failure: an engine fire had gone out of control.

Links to related content:

wiki – a webpage with details about the B29 accident.
wiki – a webpage about U.S. v Reynolds, 1953 decision.
wiki – a webpage about State Secrets privilege.
PDF – copy of 2003 petition to Supreme Court, to remedy for the fraud done in 1953.
6-19-2009 – webpage with links to radio story, including audio and transcript.