Security or coverup? How a murky case became precedent.

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.

Page: 1 | 2