Steven Aftergood
SECRECY NEWS - January 26, 2004
Mon Jan 26 14:46:52 2004
64.140.158.243

SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2004, Issue No. 8
January 26, 2004


** GOVT DENIES FRAUD IN 1953 STATE SECRETS RULING
** DUTCH INTEL REPORT ON PROLIFERATION
** INTELLIGENCE AND THE WAR IN BOSNIA 1992-1995


GOVT DENIES FRAUD IN 1953 STATE SECRETS RULING

U.S. government attorneys last week denied allegations that a
1953 Supreme Court decision which enshrined the concept of
the "state secrets privilege" was based on a fraudulent
factual foundation.

The Supreme Court decision in question, United States v.
Reynolds, provides the legal precedent for the executive
branch to assert that there are "military matters which, in
the interest of national security, should not be divulged,"
not even to a federal court.

Survivors and heirs of the original plaintiffs in that 1953
case have recently contended that the government relied on
fraudulent national security claims to win the decision.

The Reynolds case originated over half a century ago when the
widows of three crew members who died in a 1948 crash of a
B-29 Superfortress bomber requested accident reports on the
crash. The Air Force denied the request and filed affidavits
with the Supreme Court claiming that the withheld reports
contained information about the aircraft's secret mission and
described secret electronic equipment on board that had to be
protected from disclosure. The Court, citing that claim,
ruled in favor of the Air Force and established the "state
secrets privilege."

But in early 2000, one of the daughters of the deceased crew
members acquired newly declassified copies of the documents
that the Air Force had withheld and was astonished to find
nothing corresponding to what the Air Force affidavits had
portrayed.

"Contrary to the statements in the Affidavits, on which the
Supreme Court expressly relied, not one of the documents...
contain any secret or privileged information," according to a
new complaint, filed last October. "The documents consist,
instead, of admissions of negligence on the part of the Air
Force."

The survivors and heirs of the original Reynolds plaintiffs
said that the Court was defrauded by the Air Force and that
they were improperly deprived of evidence and compensation to
which they were entitled.

Earlier last year, the plaintiffs had petitioned the Supreme
Court to reopen the case (Secrecy News, 03/04/03), but the
Court rejected the motion to file the petition
(SN, 06/24/03).

Consequently, the Reynolds survivors, represented by the same
law firm as 50 years ago, filed a new initial complaint in
federal district court. See Herring v. United States, filed
October 1 in the Eastern District of Pennsylvania, here:

http://www.fas.org/sgp/jud/herring1003.pdf

Last week, the government moved to dismiss the case, arguing
that the plaintiffs are not qualified to assess the original
sensitivity of the now declassified documents.

"The mere fact that the information ... may strike the
plaintiffs today as innocuous, trivial, or unimportant, is
simply not probative" of whether they were sensitive 50 years
ago, the government stated.

Moreover, even if it were true that government witnesses had
perjured themselves in the 1953 case, that would not legally
constitute a "fraud upon the court," the government said.

See the Defendant's Motion to Dismiss the new complaint, filed
January 23, 2004 (35 pages, 780 KB PDF file):

http://www.fas.org/sgp/jud/herring0104usbrief.pdf

For some, the dispute over the history of the Reynolds case
raises very current questions about the extent of judicial
deference to the executive branch in matters of national
security.

The disclosures of the documents originally denied in 1953
"afford a rare opportunity to compare a government privilege
claim with the underlying, allegedly 'secret' information,"
wrote two attorneys in a recent critique of the matter.

"This comparison highlights the risk of permitting the
executive branch to determine, without close judicial
scrutiny, whether relevant government information may be
withheld from discovery," according to D. Churchill and E.
Goldenberg in a paper entitled "Who Will Guard the Guardians?
Revisiting the State Secrets Privilege of United States v.
Reynolds," published in Federal Contracts Report, vol. 80,
no. 11, September 30, 2003.

"Use of the state secrets privilege in courts has grown
significantly over the last twenty-five years," note William
G. Weaver and Robert M. Pallitto of the University of Texas
at El Paso.

And "recent cases indicate that Bush administration lawyers
are using the privilege with offhanded abandon," they write
in a comprehensive study to be published this year in
Political Science Quarterly.

In November 2001 President Bush issued executive order 13233
that would permit former presidents to independently assert
the state secrets privilege to bar disclosure of records
generated during their tenure.

More than that, the Bush order would make the state secrets
privilege hereditary, like some divine right of kings,
enabling the heirs of deceased presidents to assert the
privilege after their death.

"This is a power heretofore unrecognized either in courts or
politics," Weaver and Pallitto observe.


DUTCH INTEL REPORT ON PROLIFERATION

Scientific institutions and private industry in the
Netherlands need to be aware of the mechanisms of
proliferation of weapons of mass destruction in order to
avoid becoming caught up in them, urges a recent report from
the Dutch intelligence service AIVD.

The report cites an episode from the nation's own experience:
"Dr. A.Q. Khan, the man who calls himself 'the father of the
Pakistani atomic bomb,' largely acquired his knowledge
through a study and a trainee project in the Netherlands. He
concluded his traineeship by stealing technology from his
employer."

See "Proliferation of weapons of mass destruction: Risks for
companies and scientific institutions," General Intelligence
and Security Service of the Netherlands (AIVD), dated July
2003, published December 2003:

http://www.fas.org/irp/world/netherlands/wmdrisks.pdf


INTELLIGENCE AND THE WAR IN BOSNIA 1992-1995

The role of Western intelligence services in the war in Bosnia
a decade ago is probed with rigor and insight in a newly
reissued book by University of Amsterdam Professor Cees
Wiebes.

The author explores in depth the perceptions and interactions
of the various intelligence services, the contributions of
signals intelligence and satellite imagery, and the evidence
of clandestine arms transfers from Iran to Bosnian Muslims.

Based in part on interviews with the principals and the
still-classified archives of Dutch security services and the
United Nations, it is an unusually impressive addition to the
literature of intelligence.

"Intelligence and the War in Bosnia, 1992-1995" by Cees Wiebes
was assessed in this January 23 article by Brendan O'Neill,
including an interview with the author and a link to the
publisher:

http://www.spiked-online.com/Articles/0000000CA374.htm


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Secrecy News is written by Steven Aftergood and published by the
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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web: http://www.fas.org/sgp/index.html
email: saftergood@fas.org
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