State Secrets
A plane crash, a court decision and government secrecy in America.

By Michael Balchunas

Claim of Privilege: A Mysterious Plane Crash, a Landmark Supreme Court Case, and the Rise of State Secrets
By Barry Siegel ’71
HarperCollins, 2008 / 400 pages / $25.95

A fire started in a left engine as the B-29 Superfortress climbed high above the onion fields of southeastern Georgia and few toward the dusky bogs of the vast Okefenokee Swamp.

The pilot advised the seven other Air Force crew members and the five civilian electronics experts on board to put on parachutes. Suddenly the whole wing was burning, flames whipping past a window. A crewman popped the rear escape hatch and the pilot opened the bomb bay doors. As the plane spiraled down, five of the 13 men on board managed to get out; four survived. The plane exploded in mid-air, pieces raining down on a farm at the swamp’s edge.

The crash occurred Oct. 6, 1948, but its public impact today is greater than ever.

“It’s a story about the past that tells us something about the present,” says Barry Siegel ’71, whose book on the crash and its consequences, Claim of Privilege: A Mysterious Plane Crash, a Landmark Supreme Court Case, and the Rise of State Secrets, will be published June 1. “It’s also the intersection of a very personal story—about a handful of families who lost their men in a plane crash in 1948—and an important public policy story about the balance of power in America.”

The flight was part of Project Banshee, a secret effort to develop remotely operated aircraft as weapons carriers, and a precursor to guided missiles, cruise missiles and the Predator drone. After the widows of three civilian engineers who died in the crash filed a lawsuit, the government refused to release the Air Force’s accident report to them or even to a judge. The Supreme Court, in 1953, decided formally for the first time that the government had a valid claim of privilege against revealing military secrets, and described the procedures by which the claim could be invoked. In U.S. v. Reynolds, the court said judges did not have to insist upon examining the documents at issue, if the government’s assertion that national security was at risk seemed reasonable.

A curious revelation came nearly half a century later.

In February 2000, the daughter of one of the civilians killed in the crash found the recently declassified accident report on the Internet. There was no mention of the secret navigational project. The classified equipment had not even been turned on. But the report did describe operational and maintenance problems with the B-29 that led to the crash.

“It’s fair to use the word ‘cover-up’ in this case,” says Siegel, who was a Pulitzer Prize-winning national correspondent for the Los Angeles Times. “It was a great embarrassment to the Air Force that the plane had crashed because of maintenance problems and confusion in the cabin. I think the Air Force had a fundamental desire to not share accident reports. But this was also a very touchy time, at the dawn of the Cold War. The Supreme Court justices, like everyone else, had a great apprehension that the country was in peril. The Cold War anxieties were very much like the post-9/11 anxieties.”

The Reynolds case has gained greater significance over time, as the frequency of its invocation by government lawyers has risen dramatically, Siegel says.

“From 200 years of common law, it was already recognized that there were steps the state could take on behalf of national security,” he says. “What U.S. v. Reynolds did is codify the law and spell out procedures for how to apply the privilege. The use of it has increased, from five times in the first couple of decades to more than 60 times since then. But the numbers don’t really capture it, because those are just the times when it has been formally invoked. By far the greatest impact is a general deference by judges who don’t wish to overrule the government. Who wants to be the judge who resists the government’s claim that our country is at risk?”

In probing this case in depth, Siegel is on familiar ground.

“I tend to look for story ideas in the fields of law, science or medicine because that’s often where people are struggling to make ethical choices under ambiguous or difficult circumstances, where there’s no clear right or wrong answer,” says Siegel, who now directs a literary journalism program at the University of California, Irvine. “I like historical narrative and I loved the idea that this story would take us back into the past, into the Cold War era. Yet it very much resonates today in relation to Guantanamo, enemy combatants and the Patriot Act. U.S. v. Reynolds is the bedrock of national security law. In both eras, we see the sense of peril and a resulting sacrifice of liberties and constitutional rights.”

Although such issues are central to his book, Siegel says, the people involved are at the core of the story. Among the heroes of Claim of Privilege, he says, are two lower-court judges whose rulings were overturned by the Supreme Court, and the survivors of men killed in the crash, families that persisted in seeking the truth.

“It’s the questions people are struggling with that I’m interested in,” he says. “I want to look at how people are trying to find an answer in a courtroom that a legal system can’t provide.”

Siegel siphons raw material from such sources as libraries, archives, court transcripts, microfilms, official reports, letters, interviews and more. In this case, he piled thousands of pages of indexed papers on a room-length credenza at his home office in the Sherman Oaks neighborhood of Los Angeles, and struggled to find a balance between his teaching responsibilities and his writing. The end he strives for is a piquant and probative tale.

“I love the power of storytelling,” he says. “An unfolding narrative can be a compelling and effective way to understand people, to understand the world. It gives meaning to our experiences. That’s why we tell ourselves stories.”