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  The dead men’s widows hired Charles Biddle, of the law firm Drinker Biddle & Reath, to represent them. Under the Federal Tort Claims Act, the families alleged that Air Force negligence caused their husbands’ deaths. During the discovery phase of the lawsuit, Biddle sought a document that would most likely confirm or dispel the widows’ suspicions of Air Force malfeasance: the official crash report. Biddle asked the Air Force for the file. Instead, he got a stone wall. The documents, said the Air Force, were “a privileged part of the executive files.” There was no invocation of state secrets, no mention of national security. The Air Force was arguing that the crash report, like other executive files, shouldn’t be made public because their publicity could impede internal Air Force deliberations and self-criticism.

  U.S. District Court judge William Kirkpatrick didn’t buy it. “The Government does not here contend that this is a case involving the well recognized common law privilege protecting state secrets,” he ruled. In this case, wrote Kirkpatrick, “the Government claims a new kind of privilege. . . . I can find no recognition in the law of the existence of such a privilege.” Hand over the documents, the judge told the Air Force. The Air Force replied, “No.”

  In April 1950, government lawyers showed up in court with affidavits from Secretary of the Air Force Thomas Finletter and the Air Force’s judge advocate general supporting the nondisclosure. The tune had changed. Now it was invoking a “state secrets privilege.” In his affidavit, the Air Force secretary insisted that the aircraft and its crew “were engaged in a highly secret mission of the Air Force. The airplane likewise carried confidential equipment and any disclosure of its missions or information concerning its operation . . . would not be in the public interest.” “Such information and findings of the accident investigation board which have been demanded by the plaintiffs cannot be furnished without seriously hampering national security,” added the judge advocate general.

  Kirkpatrick took note of the Air Force switch, the argument changing from one of executive privilege to state secrets. Fine, said Kirkpatrick. In cases where the government alleges state secrets, the custom is to produce the documents in question for the judge to review, for any compromising information to be excised, and for the case to proceed. Once again, the Air Force refused.

  “We do not believe that is good law,” stated government lawyer Thomas Curtin, seeking to justify the Air Force’s decision to withhold the documents from the judge. “We contend that the findings of the head of the department are binding, and the judiciary cannot waive it.” It was a bold assertion, a claim of executive power far beyond what the government had made in previous cases involving potentially sensitive materials. Kirkpatrick responded with a hypothetical question: “Suppose you had a collision between a mail truck and a taxicab, and the attorney general came in and said that in his opinion discovery in the case would imperil the whole military position of the United States, and so forth. Would the court have to accept that? Is that where this argument leads?” Curtin let the judge know that that was exactly his meaning. Again, Judge Kirkpatrick didn’t buy it. Once again, he ordered the Air Force to produce the documents. When it refused, Judge Kirkpatrick ruled in favor of the widows.

  On appeal the following year, the Third Circuit Court concurred with Kirkpatrick’s decision. The government was claiming vast new powers, the appeals court warned, attempting to create a space in the law where the executive branch—and only the executive branch—had the power to review and quash lawsuits that allegedly involved matters of national security. “The Government contends that it is within the sole province of the Secretary of the Air Force to determine whether any privileged material is contained in the documents and that his determination must be accepted by the district court without any independent consideration,” wrote Judge Albert Maris in the appeals court’s decision in favor of the widows. “We cannot accede to this proposition.” Again, the Air Force appealed.

  When the widows’ case reached the Supreme Court, it found a cast of presiding justices with a robust view of executive power. The Vinson court was composed of Roosevelt appointees who’d been specifically selected to authorize the sweeping powers the late president sought to implement the New Deal and the Second World War. The Reynolds case was the latest in a series that had culminated with the Youngstown Sheet & Tube Co. v. Sawyer decision that same year. In Sawyer, the question before the Court was whether the president had the power to nationalize private industries in times of war, as Truman had done with the steel industry at the end of World War II.

  Before the district court in the Sawyer case, Truman’s attorneys argued that there were essentially only two limitations on executive power: “One is the ballot box and the other is impeachment.” Was the administration arguing that when a “sovereign people” elected a government, it was limiting the Congress and the judiciary but not the executive, asked District Judge David Pine? “That’s our conception, Your Honor,” Assistant Attorney General Holmes Baldridge answered. Pine flat-out rejected the Truman administration’s sweeping claims, writing that Truman’s theory “spells a form of government alien to our Constitution of limited powers.” The consequences of the steel strike, he opined, were far less dangerous to democracy than Truman’s expansive interpretation of his authority. The Supreme Court concurred with Pine’s decision, with Chief Justice Vinson, Justice Reed, and Justice Minton dissenting. In his dissent to the Sawyer decision, Vinson wrote that while Truman may have been seeking extraordinary powers, “these are extraordinary times.”

  Though the Supreme Court shot down the Truman administration’s vast conception of executive power in the Sawyer decision, the Reynolds case proved different. Vinson’s logic, that “extraordinary times” justify extraordinary powers, led the majority reasoning in the Reynolds case.

  When Reynolds reached the Supreme Court, Chief Justice Vinson discarded the lower courts’ rulings and sided with the executive, finding that the government does indeed possess a state secrets privilege and that “it is not to be lightly invoked.” But the crucial question was whether the courts should have the power to review claims of state secrets by seeing the materials the government sought to keep confidential. Did a judge get to see the files? The case was less about secrets than it was about the court’s ability to place checks on those secrets. In the passages where Vinson took that question on, the Court’s decision begins to defy logic.

  “The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege was designed to protect,” wrote Vinson. He went on to state that “too much judicial inquiry into the claim of privilege would force disclosure of the thing the privilege was meant to protect, while a complete abandonment of judicial control would lead to intolerable abuses.” Vinson argued it was the court’s job to oversee claims of privilege but did not explain how the courts should exert “judicial control” if they abdicated the tradition of reviewing, in camera, the materials the government sought to protect. Moreover, why would in-camera review “force a disclosure” of the alleged secrets? Surely an in-camera view was something altogether different than the front page of The New York Times. While Vinson appeared to be arguing for a modicum of judicial review over state secrets claims, the effect of his opinion was quite the opposite. The Supreme Court decision in United States v. Reynolds handed the executive branch vast new powers.

  The executive would henceforth be able to quash lawsuits involving alleged state secrets without any interference from the judicial branch. As constitutional scholar Louis Fisher points out, Chief Justice Vinson allowed “the government to withhold documents from a federal judge, even in chambers, simply by having a government official sit down with the judge and explain why certain documents could not be seen.” In his analysis of the case, Fisher concludes that the Reynolds decision had “little to do with the briefs, merits, the law, or the facts,” and that “it reads more like a decision des
igned to meet institutional and political needs.”

  In the majority opinion, Vinson recognized that “abandonment of judicial control” over the state secrets privilege “would lead to intolerable abuses,” even as his own opinion effectively abandoned the very principle of judicial oversight. Vinson never saw the evidence in the Reynolds case, nor did any other judge. Half a century later, it would turn out that the accident reports related to PROJECT BANSHEE, the documents that the government had tried so hard to protect, contained absolutely no classified information whatsoever. They did, however, contain ample evidence of government negligence, evidence that if revealed would have proved the widows right. The state secrets privilege, it would turn out, was based on a lie.

  Judy Palya Loether grew up curious about the father who died when she was only seven months old. She knew her mother was one of the first people to sue the government under the tort laws and that her mother received some money. She assumed her mother had won the case. As an adult, she spent time in her mother’s attic rummaging through boxes filled with her father’s photographs and notebooks. His papers bore the bold stamps of a classified life story. The “Secret” and “Top Secret” markings intrigued her, but she could make little sense out of the mathematical formulas and geometric drawings they contained. News clippings about the crash made cryptic references to the secret project housed in the B-29. It drove home the sense of mystery surrounding her father and made her imagine that her father was someone important. Her uncle only added to the intrigue by suggesting that the Russians had blown up the airplane her father had died on. Later in her life, the birth of her own children made her far more interested in her own father. By this time, she found a new tool of research: the Internet.

  One day in February 2000, she put the words “B-29” and “accident” into the AltaVista search engine. The results brought back the domain name Accident-report.com, which advertised “Complete Accident Reports from 1918 through 1955.” She sent a check for $63. About a week later, she received a stack of documents and photographs in return. Sitting on the sofa with the two-inch-thick envelope, she debated actually looking at them. The initial perusal of the file was a letdown. “I was disappointed,” she said. There were no secrets. No description of the BANSHEE project, no mention of another secret project called Shoran that he worked on. It was technical, barely comprehensible, and boring. The secret project that cost her father his life was barely mentioned. Her fascination with the secrecy surrounding his death wouldn’t be ameliorated by the report in her hands. But something else emerged from the crash report.

  As Loether spent night after night reading through the documents, she realized that they read like a detailed description of exactly what not to do when flying B-29s. There was overwhelming evidence of negligence. The civilian crew hadn’t been briefed on the aircraft’s emergency procedures; the crew had never flown together (causing numerous mistakes during the emergency). The Air Force, well aware of the B-29 engines’ propensity for overheating, had ordered heat shields installed on its B-29s, but none were installed on her father’s plane. Indeed, the report found that Air Force regulation “T.O. 01-20EJ-177 was not completely complied with,” and that “the aircraft is not considered to have been safe for flight.”

  Loether went from being disappointed that the crash report contained no secrets to being upset about the Air Force’s recklessness, “not angry but upset.” She wrote to other surviving family members of the crash victims, asking them whether they’d like a copy of the report she had. It had answered questions for her; maybe it would do the same for them. When Loether started talking to the other families, she learned about the Supreme Court case and about the state secrets privilege. Her mother had never mentioned that the case had gone before the nation’s highest court. Back at home, she researched the case. Within four minutes of another AltaVista search, her demeanor changed from upset to angry. “The government claimed that the secrets in the crash report were so important that a justice of the Supreme Court couldn’t see them. . . . The negligence made me upset, but the lie made me angry . . . how could the government stand before the Supreme Court and lie!?”

  After more time on the Internet, Loether started realizing the case’s significance. She found other court decisions citing United States v. Reynolds. She found a course syllabus on national security law from George Washington University organized around only a few cases. There was US v. Nixon (“I knew what that was”), US v. Burr (“Aaron Burr!”). “I got goose bumps realizing what a big deal it was . . . they were teaching this in college! Someone ought to know they lied!”

  Loether’s investigation eventually brought her back to the law firm of Drinker Biddle and Reath, the same firm who’d litigated the Reynolds case. She found the Web page of a lawyer charged with handling government cases and sent a short but passionate e-mail to the person listed on the “contact” link. She got a response from Wilson Brown III, one of the firm’s lawyers. “I am interested in following up with you about the Reynolds case,” he wrote in an e-mail. “This was well before the time of most of us, but the past of this firm means a great deal to all of us who carry on in its name, and we are intrigued with the cause you have outlined.” After talking to Judith, Brown decided to accept the case.

  Asking the United States Supreme Court to reconsider an almost five-decade-old decision, a decision that gave the executive branch extraordinary powers that the Bush administration (like other administrations before it) had come to rely on as part of its business-as-usual, was not something to take lightly. In fact, at first it was unclear how to actually go about doing it.

  “We thought that the only, the best, approach was to go direct to the top,” Brown told me. To undo the Reynolds decision, he said, “you’d have to undo the assumption that the accident report was secret. The only people who could do that was the Supreme Court.” The problem was: how to get to the Supreme Court? “That usually requires certiorari,” said Brown: an appeal from a lower court. “There’s an act called the All Writs Act that was part of the original judiciary act of 1789, and among those writs is a coram nobis writ.”

  Coram nobis is one of the most obscure legal motions out there. The Latin reads “in our presence” but is usually translated as “the error before us.” It is a petition to retroactively correct an error before the court. Coram nobis cannot be used to challenge the law or previous rulings but is instead a motion to bring new facts to an old case, facts whose revelation could retroactively bear on a settled decision. Use of the writ is extraordinarily rare; there are only a few contemporary examples. In the early 1980s, Alger Hiss filed a coram nobis petition in district court after substantial new information about his case became available through the Freedom of Information Act (his motion was denied); in 1984, Fred Korematsu, convicted of disobeying orders to report to a Japanese internment camp during World War II, successfully overturned his conviction using a coram nobis writ in district court. Recalling the Korematsu case, district court judge Marilyn Patel said, “A petition for a writ of coram nobis? What is that? I’d never seen one before, and I’ve never seen one since.”

  Neither, apparently, had the Supreme Court clerk who took Brown’s petition: At first, the clerk rejected the request, claiming that no such thing could be filed. When Brown protested that it was, in fact, possible to file such a claim, a more senior clerk at the Supreme Court made a “compromise” with the firm, asking them to file a “motion to file.”

  “United States v. Reynolds stands exposed as a classic ‘fraud on the court,’ ” wrote Wilson Brown in his coram nobis petition to the Supreme Court, “one that is most remarkable because it succeeded in tainting a decision of our nation’s highest tribunal. The fraud is clearly established by the Air Force’s recently declassified materials.” The entire case was premised on a lie, wrote Brown. When the Air Force found that it could not keep the self-incriminating documents secret, “it determined to resort to the lie that they contained, and might compromise, �
�military secrets. ’ ” As the case moved up through the district and appellate courts, the lie grew and grew. Covering it up required bolder and bolder claims of executive power. In the end, the Truman administration rolled the dice, hoping that the courts would grant them that power, and they won.

  After receiving Brown’s petition, the Supreme Court asked Solicitor General Theodore B. Olson if his office wished to reply. Olson, charged with arguing cases on behalf of the Bush administration, was a political appointee, a stalwart conservative lawyer who’d participated in Richard Mellon Scaife’s “Arkansas Project” to find dirt on the Clinton family and successfully represented the Bush campaign at the Supreme Court over the disputed 2000 election. In 2001, his wife was killed aboard the hijacked airplane that crashed into the Pentagon.

  In Olson’s reply to the coram nobis petition he argued that “the law favors finality.” He went even further, contending that the government had committed no fraud at all. Back in 1950, Olson wrote, the government never stated that “the particular accident reports or witness statements in this case in fact contained military secrets.” Instead, the Air Force worried that secrets might be contained in internal memos or in letters to RCA. Finally, argued Olson, the decision had to be seen in light of the times. “The claim of privilege in this case was made in 1950, at a time in the nation’s history—during the twilight of World War II and the dawn of the Cold War—when the country, and especially the military, was uniquely sensitive to need for ‘vigorous preparation for national defense.’ . . . The allegations of fraud . . . must be viewed in that light.” In other words, Olson’s argument for dismissing the petition relied on Justice Vinson’s words that while the state secrets privilege might represent newfound extraordinary powers, “these are extraordinary times.” A few months later, Olson went on to argue before the Supreme Court that men held at Guantánamo Bay were “constitutionally committed to the executive branch” and their voices had no place in the federal court system.