CLAIM OF PRIVILEGE: A Mysterious Plane Crash, a Landmark Supreme Court Case, and the Rise of State Secrets. By Barry Siegel. 384 pages. Harper, 2008. A Pulitzer Prize-winning reporter has written an absorbing account of the fraudulent origin of the government’s “state secrets” legal tactic (or “claim of privilege”) in a 1948 bomber crash outside Waycross, Georgia. Barry Siegel begins with the heart-wrenching stories of the three families that were devastated when three civilian engineers were among the nine crew members killed test-flying a classified RCA radar system on a Boeing B-29 “Superfortress,” which crashed minutes after taking off from Robins Air Force Base outside Macon on October 6, 1948. The engineers’ widows’ lawsuit to find out what happened was short-circuited in 1953 when the U.S. Supreme Court caved in to a government claim that “national security” might be endangered if anyone, even a trial judge, were allowed to look at the official accident report (which honestly revealed a history of maintenance problems, Air Force negligence, and crew mistakes, but no secrets). The court ruling effectively gave the Executive Branch the privilege to unilaterally decide whether evidence against itself might threaten national security. A half-century later, long after the Cold War backdrop to the original case, the victims’ families discovered the declassified investigation report, saw no secrets had been involved, and asked the high court to revisit the landmark decision, U.S. vs. Reynolds. However, in the post-9/11 age of the PATRIOT, Military Commissions, and Foreign Intelligence Surveillance acts, the Supreme Court refused to review its legal precedent.
A consequence of the Reynolds precedent during the “global war on terror” has been numerous White House “claims of privilege.” Instances include: To thwart legal challenges to “extraordinary rendition” of terror suspects and warrantless eavesdropping on Americans, to block lawsuits by an FBI whistleblower and a CIA officer claiming job discrimination, even to fend off a patent claim for fiber-optic cable. On February 10, 2009, the Obama administration declined to reject the “state secrets” claim, even though Obama had repeatedly criticized the Bush administration for hiding behind the privilege. A bill to seriously limit the “state secrets” claim has been introduced in Congress, but what Barry Siegel’s excellent reporting makes clear is that this claim — no matter how it is limited — owes its essential origin to fear-mongering and lies, something perhaps worth considering before Congress makes any form of the “claim of privilege” into the law of the land. (You can find this book in the UGA Library via GIL, or through the GIL Universal Catalog.)–Reviewed by Skip Hulett, Georgia Room.