Claim of Privilege

By Barry Siegel | HarperCollins | $25.95 | 314 pages | 2008
Reviewed by Hon. Roger E. Thayer

In October 1948, a U.S. Air Force B-29 Superfortress crashed near Waycross, Ga., shortly after taking off during daylight hours. Six members of the crew and three civilian engineers died. Three crew members survived the accident. The mission of the trip was to test certain secret navigational equipment. The widows of the three civilian engineers filed suit against the government seeking damages for the wrongful death of their husbands.

As the cases progressed in the U. S. District Court, the widows sought to obtain copies of the accident reports and witness statements in the possession of the government. The government first claimed executive privilege precluded the surrender of the documents. The district judge rejected this defense and held that there was no such privilege and ordered the documents to be turned over. The Secretary of the Air Force and the Judge Advocate General declined to comply with the order and filed affidavits that insisted compliance would "seriously hamper national security." Following a hearing upon the government's position that the documents could not be turned over, the district judge held that the widows were entitled to the reports and ultimately granted a default judgment in their favor when the documents were not finally produced. Upon appeal to the Third Circuit Court of Appeals, the ruling was affirmed with the appeals court ruling that the enactment of the Federal Tort Claims Act had divested the government of its normal sovereign immunity and that the state secret defense was not applicable.

The author has noted that throughout the various hearings the plaintiffs made it clear that they did not seek any secret or classified documents but only wanted the reports and witness statements relating to the operation and maintenance of the airplane and what caused the aircraft to crash.

In 1953 the case was finally decided by the United States Supreme Court in a landmark decision (United States v. Reynolds) reversing the ruling forcing disclosure of the documents. The court held that the state secret doctrine was well founded in the common law and must be respected in this case. Without these documents, the cases could not proceed further and were dismissed.

The author has a chapter dealing with the progeny of the Reynolds case, and it appears there is a long line of cases where this landmark decision was cited and followed with the state secret defense stopping cases right in their tracks.

Five decades pass and in February 2000, a child of one of the deceased engineers was using the Internet and decided to search for any information concerning her father's mysterious death and typed in the words: "Crashes-Waycross" and came upon a Web site where complete U.S. Air Force accident reports were available up until 1955. She obtained 220 pages of reports and 15 photos which clearly did not contain any secret or classified information but was full of information indicating negligence was involved in the operation of the airplane and also in the maintenance of the plane. With this information the families go back to court.

Claiming fraud was the basis of the Reynolds' decision, a petition for writ of error coram nobis was filed directly with the U.S. Supreme Court in 2003 in an attempt to correct the mistake. The government's response was there must be a finality in judgments and that every case where a mistake is made, a retrial cannot be granted. The court denied the petition. Sometime later a new independent action was filed in the U.S. District Court and was dismissed upon a finding by the district judge that the government had not been guilty of an intentional act of misrepresentation or fraud. An appeal to the Circuit Court of Appeals upheld this finding and stated the necessary standard of proof must be an intentional fraud directed to the court itself. On May 2, 2006, the U.S. Supreme Court delivered a one-sentence ruling denying the petitions for writs of certiorari.

The book goes into great detail about the several families caught up in this lengthy legal struggle, the lawyers and judges who participated in every hearing and the decisions of the various courts.

While the state secret defense is an important doctrine firmly grounded in the common law and a large number of cases following the Reynolds decision, it appears that in the urging of this defense there is no oversight by a court to see enough of the evidence to be sure the defense is truly applicable.

The author notes that in January 2008, Sen. Edward Kennedy and Sen. Arlen Specter jointly introduced the State Secrets Protection Act, which would require judges to examine some of the actual evidence rather than completely rely on affidavits when the government invokes the state secret doctrine. According to a U.S. Senate Web site, the bill was still pending at the time of this book review.


A former General Sessions judge in Kingsport, ROGER E. THAYER served 26 years as a circuit court judge in Sullivan County, retiring in 1994. He then served on a part-time basis on the Workers’ Compensation Appeals Panel of the Tennessee Supreme Court from 1995 to 2006.