Recently declassified government documents were at the heart of a request to reopen a 1953 U.S. Supreme Court case involving the crash of an Air Force plane that killed nine people, four of them civilians. The families of three of the deceased men petitioned the high court for a writ of coram nobis, that is, to correct a judgment it made that was later found to turn on an error of fact. That case is United States v. Reynolds, 345 U.S. 1 (1953). Because the case was decided during the Cold War, legal scholars cite it as setting the precedent that gives the executive branch the power to withhold information from the judiciary when national security could be compromised. The case was invoked in arguments in both the Pentagon Papers and Watergate trials.
In 1948, Albert Palya, William H. Brauner and Robert Reynolds were civilian engineers working with the Air Force to develop secret navigation equipment. On October 6, they joined an Air Force flight crew in a B-29 bomber, flying from Robbins Air Force Base in Georgia to Orlando, Fla., to test the new equipment. However, on the return leg of the flight, the plane crashed in Waycross, Ga., and the three civilians were killed along with six others onboard the plane.
The widows of the three men filed suit under the Federal Tort Claims Act (FTCA). Passed in 1946, the law allows citizens to sue the government for harm caused by its negligence or misconduct. Their attorney was Charles Biddle, who had himself been a fighter pilot during World War I. According to The Washington Post, Biddle was familiar with B-29s and knew they were prone to accidents. In 1950, as part of his preparations for the trial, Biddle requested the Air Force's report of the investigation of the 1948 accident. His request was denied.
Biddle then went to Federal District Judge William Kirkpatrick of the Eastern District of Pennsylvania and informed him that the government had refused his request. Kirkpatrick ordered the government to produce the report. Thomas Finletter, then secretary of the Air Force, responded with a letter stating that it would not be in the "public interest" to do so.
Kirkpatrick scheduled a hearing so that the government could justify its position. At the hearing, a sworn statement from Maj. Gen. Reginald Harmon, the judge advocate general of the Air Force, was presented to the court. Harmon argued that the information contained in the Air Force's report on the 1948 accident would harm national security. Kirkpatrick decided to review the report himself in camera, but the Air Force would not agree to the arrangement. Kirkpatrick responded by simply entering judgment for the widows on their negligence claim.
The government appealed Kirkpatrick's ruling to the U.S. Supreme Court, arguing that it could withhold documents on the basis of "public interest." On March 9, 1953, the Supreme Court agreed in a 6-3 decision, and precedent was set.
Meanwhile, the widows' suit was remanded and they received smaller financial settlements than they originally sought. The women went on with their lives.
Nearly 50 years passed.
During the 1990s, the Air Force declassified its airplane accident reports spanning the years from 1918 to 1952. Michael Stowe, a man with a fascination for old airplane crashes, obtained the reports and began offering copies of them for sale on the Internet at http://www.Accident-Report.com/. Judith Loether, Palya's now-grown daughter, discovered the Web site and ordered a copy of the report concerning the crash.
The report revealed that just prior to the crash that killed her father, the first of four engines caught fire. Rather than slowing the propellers to the first engine, Capt. Ralph R. Irwin, the plane's pilot, slowed the propellers to the fourth. Then, in another effort to avert disaster, he mistakenly shut off the fuel to the second engine when he should have done so with the first.
Additional findings disclosed that technical orders intended to correct problems with the plane's rivets had not implemented, making the plane unsafe for flying; that a collector ring on the first engine had failed; and that neither the flight crew nor the civilians onboard had been properly briefed in safety measures prior to takeoff. Nothing in the report mentioned the secret navigation equipment that had been the focus of the mission.
Family members of the deceased civilians returned to Drinker Biddle & Reath LLP, the law firm that handled their 1950 case, seeking to petition the Supreme Court for a writ of error coram nobis on the basis of these newly-discovered facts, and accusing the Air Force of fraud. In its brief to the high court, attorneys wrote, "United States v. Reynolds stands exposed as a classic Ôfraud on the 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 brief claims that the Air Force wanted to keep the real causes behind the 1948 crash secret because it was a recently-established branch of the military services and also because the safety of the B-29 bomber was coming under question. To further complicate matters, the United States stood at the brink of the Cold War. But the Air Force's disclosure of the truth concerning the accident, the brief continues, "could not and would not have threatened any facet of secret military research, let alone our national security."
Attorneys for the family members asked the Supreme Court to vacate its 1953 decision and decide the case anew with the facts contained in the declassified documents. On the basis of the anticipated new decision, the attorneys also requested that their clients be compensated as provided by the Federal Tort Claims Act.
However, on June 23, 2003, the Supreme Court refused to hear the case without comment.
Secrecy News reported on the Supreme Court's decision not to rehear the case, characterizing the legal status of U.S. v. Reynolds as "unaffected," adding, "But for some attentive members of the public, the fifty-year-old decision nowcarries an asterisk, a taint of suspected fraud."
Silha Fellow and Bulletin Editor