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Claim of Privilege: A Mysterious Plane Crash, a Landmark Supreme Court Case, and the Rise of State Secrets

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This book is the chronicle of a grievous travesty of justice at the highest level of our American political system. One branch of government lied to another branch of government, and 50 years thereafter the lie was discovered and its content was made public. On appeal to the Supreme Court of the United States of America it became evident that our judicial system is incapable of effecting the balance of powers that was assumed in our founding documents.

A litany of successive abuses of executive privilege has proceeded from that event, protected by legal assumptions that were couched in the mechanics of the original lie. Barry Siegel gives us a detailed and meticulously documented look into this part of our American heritage, and he does it with a strong personal sense for the human beings who have been - and will be affected.

No one questions that governments need to keep some things secret. There is no reason that I should be able to get detailed blueprints on the newest of submarines, for instance, nor need I decode the latest messages going to the generals in Afghanistan. In matters of national security, keeping secrets even from citizens is only sensible. There is a problem, though, that it is the national government that makes decisions about what is a matter of national security. There are other reasons to keep secrets, like covering up blunders or limiting financial redress against the government, and bureaucrats may be eager to claim that these must be kept secret and ask for your faith that they need the secrecy in the interest of national security. There is an important Supreme Court decision that first put the "states secrets privilege" into the law, _United States vs. Reynolds_ of 1953, and it is a basis for subsequent states secret decisions, of which , of course, there have been many. It is a shock to find out that the decision was based on lies presented by the prosecution, and that the government fallaciously insisted that the details that would have shown them to be lies were too secret for the courts to consider. In _Claim of Privilege: A Mysterious Plane Crash, a Landmark Supreme Court Case, and the Rise of State Secrets_ (Harper), journalist Barry Siegel has told the amazing, often distressing story of this case. In a riveting narrative, he tells us about the personalities behind the decision, the families that were affected by it, the historical context of the times in which it was made, and the governmental aftereffects. It has much of the David-versus-Goliath appeal of a legal thriller, while it also throws light on current governmental insistence on the privilege of keeping secrets.

The decision arose out of a 1948 crash of a B-29 Superfortress bomber which was testing secret electronics, and which crashed, killing nine of thirteen men aboard. Among the dead were three civilian RCA engineers, and their widows claimed the crash was a result of government negligence. There are always accident reports after such crashes, but after the suit was brought by the widows, the Justice department claimed the accident report was a national security secret, even though it had nothing to do with the secret electronics on board. Lower courts rejected such a declaration, but the Supreme Court decided that courts should accept any executive branch claim of secrecy and not look any deeper; part of the court's deference to the government was that the political atmosphere was thick with communist plots and international threats. The lower courts decided rightly; the Supreme Court was presented with a fraud, and wrongly decided on the basis of that fraud. The latter part of this book is a satisfying human story of how children of the dead engineers and the one remaining widow got together starting in 2000 to pursue their claim, and how the original law firm that has pursued the case was eager to take up the battle again.

It turned out to be, at best, a muted victory; national security concerns were high at the time of the new claim, just as they had been at the time of the original one. The new claim, however, made it clear that the original one had been based on a fraudulent claim of national security. The claimants weren't interested in repealing the original decision, or attempting to tear down established national security law. What they accomplished was that judges, when confronted with lawyers for the Justice Department claiming secrecy due to _Reynolds_, had to remember the faulty background behind the original judgement, and ought more closely to consider whether something is a secret just because the government says so. It is good to remember this at a time when the state secrets privilege is a favorite tool to drop whistle-blowers, restrain investigation into detentions, and promote surveillance programs. Siegel is too good a journalist to let his book turn into a manifesto against the secret-hugging current administration, and though he mentions some current cases, his criticism is mostly implicit. Nonetheless, this is a powerful legal story which convincingly shows that citizens ought to have a measure of distrust when the government waves the "state secret" flag.

"Claim of Privilege" is a fascinating work of nonfiction that reads like a novel. Not only does it recount the details of a little-known military plane crash, but also our government's abuse of power. Once you read Siegel's book, you'll want to share it with others.

The unilateral invocation of the 'state secrets' doctrine by the government is frought with problems. This book sets forth the history of the leading Supreme Court case on the subject. But it approaches the task more as an exercise in telling the story of the 'sleuthing' by the heirs of the three of the civilians killed in the Air Force accidednt giving rise to the intial litigation than as an analysis of the issues. Half a century after the events, the issues are fascinating, the human story is simply not all that interesting, however painful for the participants.

On page 300, the author rattles off a half dozen current cases where the Bush administration successfully blocked private litigations by invocation of the doctrine, providing a half sentence summary of each. The details of those sister suits are much more important than the details of where the widows and orphans met for lunch. But, in nthis work, 'human interest' substitutes for policy analysis.

The truly core question tends to get lost in all the story telling. Much less shocking than the Supreme Court's sanctioning the government's refusal to allow the heirs to examine the official report of the air accident is the fact that the Court did not require the government to submit the allegedly 'secret' report to the presiding judge for in camera inspection. The Supreme Court submitted to the unilateral truncation of the judiciary's customary function.

Finally, and a complaint which probably only a lawyer would be likely to make, while I am appalled by the government's conduct in this case, I have a strong suspicion that a much better defense/explanation for its performance could be written than Mr. Siegel has provided. The issue is too important for polemic

The author does a fine job describing what continues to be evidence of the decay of our own personal freedoms. This is all very disturbing.

It's fun to see how intimitely connected we often are to the Fifties, and most of us don't know how. Here's one example.

So, where's the Church commission today? Why are state secrets allowed to stand for so long? The onus should be on the Feds to justify, not on the rest of us to get them declassified.

Great writer. Great book.

Barry Siegel,a Pulitzer prize winning writer, offers a meticulously researched, beautifully written story of the genesis of expanded executive power and the government secrets privilige. In so doing, he puts a human face on a real tragedy for the families involved in the court case and for the entire nation.

The year was 1948. As far as most Americans were concerned World War II was now in the rear view mirror and people were busy making up for lost time. Couples were building homes and having babies in ever increasing numbers. Prosperity abounded. It seemed that happy days were indeed here again. Yet there were troubling new threats looming on the horizon that those in our government and military found very compelling. The Korean peninsula had been politically divided at the conclusion of World War II and the threat of armed conflict in that region of the world appeared inevitable. Meanwhile, there were escalating political, military and economic tensions between the United States and the Soviet Union that would eventually come to be known as the Cold War. This was not a time to rest on our laurels. Beginning in 1946, the Defense Department entered into a contract with RCA to develop a guidance system for a pilot-less aircraft. They called it Project Banshee. The goal, in an era before intercontinental missiles, was to launch drone planes that could travel long distances and drop bombs on pinpoint targets. Test flights would begin just a year later on the Air Force's rather unreliable B-29 aircraft. On October 6, 1948 three RCA engineers joined an Air Force crew on one such test flight. Sadly, one of the engines caught fire and this plane would ultimately crash into a field in Waycross, GA. All three of the engineers were killed as well as a number of military personnel. The accident report prepared by Air Force investigators clearly indicated that pilot error was a factor in the crash. In addition it was learned that there were numerous mechanical problems with this particular aircraft. This mission should never have been allowed to take off! "Claim of Privilege: A Mysterious Plane Crash, A Landmark Supreme Court Case, and the Rise of State Secrets" recalls the remarkable series of events that ensued following this little known plane crash. It turns out that there was a lot more at stake here than simply compensating the families for the loss of their loved ones.

For a variety of very dubious reasons the Air Force was extremely reluctant to release the facts surrounding this case. They steadfastly refused to produce the accident report citing "state secrets" and this in essence was the crux of this case. The families of Al Palya, Bob Reynolds and William Brauner, the three civilian engineers who were killed in this mishap, had no idea why the accident occurred. Release of the accident report was crucial to their understanding of what had happened to their loved ones. In 1949 the widows of these engineers approached renowned attorney Charles Biddle of the Philadelphia law firm Drinker, Biddle & Reath about representing them in this case. Biddle was a former World War I fighter pilot and was intrigued by the issues presented in the case. None of the parties involved could ever have imagined that the legal wrangling surrounding this incident would ultimately span more than half a century.
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"Claim of Privilege: A Mysterious Plane Crash, A Landmark Supreme Court Case, and the Rise of State Secrets" chronicles this case as it originally unfolded in the early 1950's. Throughout the litigation the Air Force continued to cite "state secrets" and refused to release the accident report. The case would ultimately wind its way to the U.S. Supreme Court. Before the Supreme Court the U.S. government continued to maintain that releasing the accident report would have a detrimental effect on national security. Given the prevailing political climate the majority of the Justices bought the government's argument. This decision would prove to have serious unintended ramifications for our nation. Over the ensuing decades the Executive branch would choose to classify more and more documents as "secret".

Fast forward now to the year 2000. Judy Palya, daughter of crash victim Al Palya, was surfing on the internet when she discovered something quite remarkable. Unbeknownst to the families all Air Force accident reports prior to 1956 had been declassified by the Clinton administration in 1996. For a nominal fee she could obtain a hard copy of the 200+ page accident report. What Judy discovered in this report was shocking and would pave the way for another round of litigation. It was quite obvious that the U.S. Government had lied to the Supreme Court about this case back in the 1950's! Nearly a half century after the original case was litigated the law firm of Drinker, Biddle & Reath would again become involved in an attempt to correct this huge miscarriage of justice that had far reaching consequences both for the families of the victims and for the American people as well. This decision seems to have paved the way for future administrations to greatly expand the culture of secrecy in Washington, particularly after the 9/11 attacks. "Claim of Privilege: A Mysterious Plane Crash, A Landmark Supreme Court Case, and the Rise of State Secrets" chronicles this remarkable case from start to finish. Author Barry Siegel has given us an exceptionally well-written and meticulously documented book. This just might be the best book I have read in 2009. I could not put it down. "Claim of Privilege" certainly contains all of the elements of a great motion picture. Very highly recommended!

If you really want to know how Cheney, Bush & Co (along with Nixon and every other administration from 1948 on)can legally stonewall the country on critically important matters of war and peace, READ THIS BOOK. It's a rigorously reported, mindblowing narrative about the first "state secrets" case, brought six decades ago against the U.S. government by the widows of three civilian engineers killed during a test flight for the Air Force. The widows wanted to know why their husbands died; the government refused to tell them, claiming that "military secrets" would be compromised. In fact, the U.S. wasn't about to make public the real cause of their husbands' deaths: The plane's known but uncorrected mechanical flaws and the pilot's incompetence. And the Supreme Court ruled (why is this no surprise?)in favor of the U.S. What do three widows and their newly fatherless children matter compared to protecting "state secrets"--even if they're bogus? There's much, much more to Siegel's harrowing, multigenerational story, but I won't spoil it for you. Just buy the book.