Security or coverup? How a murky case became precedent.
WASHINGTON — Judith Palya Loether was 7 weeks old in 1948 when her father died in a plane crash while on a secret military research mission.
Because of the hush-hush nature of his work, the family was never quite sure what happened. Decades later, after she became a parent herself, Mrs. Loether sat down at her home computer to try to get some answers.
Along the way, she uncovered the murky underside of a landmark US Supreme Court case and the controversial legal doctrine it established. That doctrine, known as the state secrets privilege, allows the government to argue that a legal case should be dismissed because a trial would reveal government secrets. The controversy revolves around its use: When is the government protecting national security and when is it covering up mistakes or embarrassment?
The state secrets privilege is very much in today's headlines. It is at the center of Bush administration efforts to block lawsuits against telephone companies that reportedly supplied data to the National Security Agency for broad antiterror surveillance in the US. The privilege also led to the recent dismissal of a German citizen's lawsuit against CIA officials and others for his alleged kidnapping, imprisonment, and abusive interrogation in secret detention centers overseas.
Overall, the government has invoked the privilege more than 60 times in the past 53 years, and judges have upheld it in all but five instances.
The idea of a state secrets privilege is as old as the 1807 treason trial of Aaron Burr. But the doctrine's more recent uses stem from the case that grew out of the 1948 crash that took the life of Loether's father and others.
Albert Palya was one of three civilian scientists who died in a B-29 bomber that crashed near Waycross, Ga., in October 1948 while conducting highly classified guided-missile research.
The three widows and their five children filed a lawsuit claiming the crash was the result of negligence. To prove the allegation, their lawyers asked to see the accident reports. The government refused to produce them, arguing that the suit should be dismissed because the accident reports were classified and any court discussion of the B-29's secret mission would compromise national security.
A federal judge ruled for the widows, issuing a $225,000 default judgment against the government for its refusal to produce the documents. A federal appeals court upheld the judgment.
The issue went all the way to the US Supreme Court, where in 1953 the justices sided 6 to 3 with the government in the landmark case US v. Reynolds. The court ruled that protection of state secrets outweighed the widows' need to examine the accident reports.
After losing at the high court, the widows agreed to a government-offered settlement of $170,000.
The matter might have ended there but for Loether's Internet research in 2000. Although her mother had talked of a court case and payment from the government, Loether had few details about her dad.
"I wanted to know what it was my father was working on. I knew he did secret stuff," she says. An uncle had once suggested he was shot down by the Russians.
She typed the words "B-29" and "accident" into her computer and found a website selling declassified military accident reports. The reports of her father's crash arrived in the mail 10 days later.
Rather than military secrets, the accident reports detailed embarrassing and incriminating evidence of mistakes and negligence by the flight crew and mechanics that led to the 1948 crash, she says. "As I discovered more and more about it, I got more and more angry," Loether says. "It didn't have to do with state secrets, it had to do with embarrassment and negligence. You can't look at that accident report and not be overwhelmed by the amount of negligence involved."
But she says she still had faith that the government would correct the mistake once it was revealed. "I even had fantasies that President Bush would call me and apologize," she says.
Eventually, she took her findings to the same law firm that filed the 1949 suit. They filed a suit alleging that government officials carried out a fraud upon the court by claiming the accident reports contained secrets when they did not. They asked for $1 million in damages to compensate for the $55,000 difference between the settlement and the widows' default judgment.
In response, Bush administration lawyers denied that anyone had lied in the earlier case. They said government officials had simply adopted a broad reading of state secrets. It was the height of the Cold War, they stressed. Any details about the workings - and failings - of the B-29 aircraft itself might have helped the Soviets piece together important clues about US military capabilities and research.
A federal judge agreed and dismissed the suit. A three-judge federal appeals court panel - including now-Supreme Court Justice Samuel Alito - also embraced the Bush administration's broad reading of the state secrets doctrine.
But that wider interpretation seems at odds with the Supreme Court's more focused 1953 opinion. Back then, it upheld the government's position because there was "a reasonable danger that the accident investigation report would contain references to the secret electronic equipment." There was no suggestion that the military secrets at issue in the case related to the B-29.
The majority opinion also said it would be possible for the widows to explore the cause of the accident "without resort to material touching upon military secrets."
By contrast, under the most recent ruling by the federal appeals court, any investigation into the cause of the B-29 crash would have endangered state secrets.
The case didn't end there. It was appealed to the US Supreme Court. On May 1, the court declined to take it. The denial noted that Justice Alito took no part in consideration of the petition.
Loether says the experience has changed her. "I'm not a raging liberal," she says. "But I think I was very naive back in 2000. I tended to think this is the great United States of America and the government tries to do the right thing and tries to make the moral choice.
"I still love my country, but I'm not so naive," she says.