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Lawyers make their opening arguments before the Supreme Court in the case of US v Reynolds, the lawsuit that finds the government had no overarching right to unilaterally refuse to deliver classified documents in the course of a wrongful death lawsuit against the government (see December 11, 1951). The government has appealed the appellate court ruling to the Supreme Court (see March 1952). Because four of the nine justices had voted not to hear the case—in essence to let the appellate court ruling stand—the defense is cautiously optimistic about the Court’s decision.
Judiciary Has No Right to Interfere with Powers of the Executive, Government Argues - Acting Solicitor General Robert Stern tells the Court that the appellate judges’ decision, written by Judge Albert Maris, “is an unwarranted interference with the powers of the executive,” and that the decision forced the government to choose “whether to disclose public documents contrary to the public interest [or] to suffer the public treasury to be penalized” (a reference to the decision to award the plaintiffs monetary damages—see October 12, 1950). The judiciary “lack[s] power to compel disclosure by means of a direct demand [as well as] by the indirect method of an order against the United States, resulting in judgment when compliance is not forthcoming.”
Executive Has No Right to Unilaterally Withhold Information, Defense Counters - Stern’s arguments are countered by those of the plaintiffs’ lawyer, Charles Biddle, who writes, “We could rest our case with confidence on the clear opinion of Judge Maris,” but continues by arguing that if the government asserts a claim of executive privilege on the basis of national security, it must make the documents available to the Court for adjudication, or at least provide enough information for the Court to judge whether the documents present in fact a threat to national security if disclosed. This is particularly true, Biddle argues, “where there is no showing that the documents in question contain any military secret” (Biddle is unaware that the documents’ classification status had been reduced two years before—see September 14, 1950). “The basic question here is whether those in charge of the various departments of the government may refuse to produce documents properly demanded… in a case where the government is a party (see June 21, 1949), simply because the officials themselves think it would be better to keep them secret, and this without the Courts having any power to question the propriety of such decision.… In other words, say the officials, we will tell you only what we think it is in the public interest that you should know. And furthermore, we may withhold information not only about military or diplomatic secrets, but we may also suppress documents which concern merely the operation of the particular department if we believe it would be best, for purposes of efficiency or morale, that no one outside of the department, not even the Court, should see them.”
No Basis for Claims of Military Secrets - Biddle argues that because of responses he has received to his demands over the course of this lawsuit, he is relatively sure there are no military secrets contained within them. “[T]he proof is to the contrary,” he says, and goes on to say that had the Air Force disclosed from the outset that the plane crash, the fatal accident that sparked the original lawsuit (see October 6, 1948), was probably caused by pilot error and not by random chance, the plaintiffs may have never needed to ask for the disclosure of the documents in question, the accident reports on the crash (see October 18, 1948). “The secretary [of the Air Force]‘s formal claim of privilege said that the plane at the time was engaged in a secret mission and that it carried confidential equipment,” Biddle says, “but nowhere was it asserted that either had anything to do with the accident. The whole purpose of the demand by the respondents was for the purpose of finding out what caused the accident.… They were not in the least interested in the secret mission or equipment.” (Siegel 2008, pp. 165-170)
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