The Los Angeles Times Mistakenly Traces the History of State Secrets to a Case from the Cold War
Steven Aftergood, writing in Secrecy, the newsletter of the Federation of American Scientists (Volume 2004, Issue No. 38 April 21, 2004):
An extraordinary two-part series in the Los Angeles Times this week examined the questionable roots of the 1953 Supreme Court decision United States v. Reynolds, in which the Court affirmed the "state secrets privilege" and permitted the government to withhold documents regarding a 1948 aircraft crash.
The Court at the time accepted without challenge the government's argument that disclosure of the documents would place "state secrets" in jeopardy. But following declassification of those records 50 years later, no such secrets could be identified. The original government case was fraudulent, the plaintiffs now argue.
In his LA Times series, virtuoso reporter Barry Siegel turned over every relevant rock and interviewed every relevant participant in an effort to understand their perspectives and experiences. He produced an exceptional piece of work that is both probing and empathetic.
See "The Secret of the B29" by Barry Siegel, Los Angeles Times, April 18 and 19, with supporting documents, here:
http://latimes.com/b29
It is not strictly correct to say that the 1953 Reynolds case "spawned" the state secrets privilege, as the Los Angeles Times editorialized today. (Secrecy News made a similar mistaken assertion a few months ago.) The privilege existed long before it came before the Supreme Court.
Nor would the past, current or future application of the state secrets privilege be affected should it turn out, as it now appears, that the 1953 Reynolds decision was based on false premises.
But what should be called into question is the expanding doctrine of judicial deference, under which judges rely uncritically on the untested assertions of government witnesses. That is where the Reynolds Court went astray.
Selected case files from the continuing dispute over the 1953 Reynolds ruling, which is now being litigated in the eastern district of Pennsylvania, may be found here:
http://www.fas.org/sgp/jud/index.html#reynolds