By Barry Siegel, Director of the Literary Journalism Program, UC Irvine; Pulitzer-Prize winning former national correspondent, Los Angeles Times
A few weeks ago, at the Los Angeles Times Festival of Books, I moderated a panel that carried the title “Checks and Balances.” The festival organizers thought to install me on this panel because I had a new book coming out (published last week), Claim of Privilege: A Mysterious Plane Crash, A Landmark Supreme Court Case, and the Rise of State Secrets. Since my book chronicles the causes and consequences of U.S. v Reynolds, the Supreme Court decision that formally recognized the state secrets privilege, the festival folks assumed I’d have something to say about the dangerous erosion of checks and balances in our system of government.
I did, but first I listened to my fellow panelists. Tim Weiner (Legacy of Ashes) talked about how “we have been living in a world outside the Constitution” since fall of 2001, in great part “because of the ways in which Bush and company have used, misused and abused the CIA in the name of the war on terror.” Susan Jacoby (The Age of American Unreason) blamed a public “that knows little about the basic constitutional structure” and a media “that assumes the public doesn’t care.” Philip Shenon (The Commission) pointed to “stunning shortcomings” and compromised, clandestine relationships in the 9/11 Commission’s work.
I, in turn, talked about the judiciary—about our federal judges’ striking pattern of deference to the Executive Branch whenever the terms “national security” and “state secrets” are shouted (or whispered) in a courtroom. In truth, from the moment I learned the title of our panel, I had been thinking about the responsibilities of judges. It was hard not to, considering the critical role that two legendary jurists play in Claim of Privilege.
Consider the outlines of my narrative: In October 1948, the dawn of the Cold War, a U.S. Air Force B-29 crashes over Waycross, Georgia, while on a mission to test secret navigational equipment. The widows of three civilian engineers on board file a lawsuit against the government claiming negligence. During discovery, the widows ask the government for a copy of the Air Force accident report and witness statements. The government refuses to produce, eventually (but not at first) claiming the documents contain state secrets. The government refuses even to hand them over to a court for in camera inspection.
U.S. District Judge William Kirkpatrick hears the arguments. It’s the summer of 1950. The Cold War is intensifying, with America under a seemingly apocalyptic threat from the Soviet Union. Red China and East Germany now exist, the Red Scare is mounting, Russia has started testing atomic bombs—and in the headlines, Truman talks about a “wave of hysteria” sweeping the nation. Judge Kirkpatrick is mindful of all this but says: No, the government doesn’t have a unilateral right to decide on its own what is secret, what it can withhold. He can find “no recognition in the law of the existence of such a privilege.” Kirkpatrick orders the government to hand over the documents for his private inspection. When the government still refuses, Kirkpatrick enters a default judgment in favor of the widows.
The government appeals, and the case now goes to the 3rd Circuit, where another remarkable judge, Albert Maris, heads the panel hearing the matter. Like Kirkpatrick, Maris is appalled at the executive branch’s claim that it can unilaterally decide what it can withhold. “We cannot accede to this proposition…” he writes in an eloquent opinion still read by law students today. “To hold that the head of an executive department of the Government in a [law]suit to which the United States is a party may conclusively determine the Government’s claim of privilege is to abdicate the judicial function and permit the executive branch of the Government to infringe on the independent province of the judiciary as laid down by the Constitution.” Such an abdication seems unimaginable to Maris: “The Government of the United States is one of checks and balances. One of the principal checks is furnished by the independent judiciary which the Government established.”
Two very different judges, one (Kirkpatrick) a crusty conservative Republican, the other (Maris) a liberal Democrat, but both united by their ardent belief in our system of government. Both living in an anxious, threatening time full of apocalyptic fears, but both insisting that we must maintain a balance of power, that we must maintain the rights and protections of the Constitution.
Of course, we know now how this story turns out: In March 1953, the U.S. Supreme Court reverses Maris and finds in favor of the government, formally recognizing the state secrets privilege, which over the past half century increasingly has allowed the Executive Branch unbridled powers. This, even though we learn that the B-29 accident report (declassified recently) contains not national security secrets but a stark chronicle of military negligence. No matter—the retreat of the judiciary has only intensified in recent years as judges routinely dismiss actions when the government waves the national security flag. Since 1992, in less than one-eighth of such cases have judges even asked to see the disputed documents. Judges like to defer; it lets them off the hook.
Perhaps the proposed State Secrets Protection Act, legislation now pending in Congress, will help correct the balance—it would, among other things, require judges to review the disputed documents rather than rely on government assurances. Yet more than legislation, what’s needed are judges willing to do their job. What’s needed are jurists with the nerve and wisdom of William Kirkpatrick and Albert Maris.