United States v. Reynolds, 345 U.S. 1 (1953), is a landmark legal case decided in 1953, which saw the formal recognition of the state secrets privilege, a judicially recognized extension of presidential power. The US Supreme Court confirmed that "the privilege against revealing military secrets ... is well established in the law of evidence".
Overview Three employees of the Radio Corporation of America, an Air Force contractor, were killed when a B-29 Superfortress crashed in 1948 in Waycross, Georgia. Their widows brought an action in tort seeking damages in federal court, under the Federal Tort Claims Act. As part of this action, they requested production of accident reports concerning the crash, but were told by the Air Force that the release of such details would threaten national security. Because of the failure of the government to produce the documents, a directed verdict in favor of the plaintiffs was granted by the trial court. The judgment was affirmed by the United States Court of Appeals for the Third Circuit. The United States Supreme Court reversed the decision, and remanded it to the trial court. After this, a settlement was reached with the widows, who received an aggregate sum of $170,000 in exchange for a release of liability to the Government.
Issues Are the Judge Advocate General of the United States Air Force and the Secretary of the Air Force allowed to assert privilege in the face of a suit brought under the Federal Tort Claims Act and the application for production of documents under Rule 34 of the Federal Rules of Civil Procedure? Does the doctrine in federal criminal cases of letting the defendant go free by dismissing the criminal charges in cases where evidence is not produced by the government apply to federal civil (tort) cases brought under the Federal Tort Claims Act? Was the judgment entered by the District Court under the Federal Tort Claims Act against the United States Government and in favor of the plaintiffs for failure to produce the documents in question proper? Was the affirmation of the judgment of the Third Court of Appeals proper?
Holdings In this case, there was a valid claim of privilege under Rule 34; and a judgment based under Rule 37 on refusal to produce the documents subjected the United States to liability which Congress did not consent by the Federal Tort Claims Act.Reynolds, 345 U.S. at 2-12.
As used in Rule 34, which compels production only of matters "not privileged," the term "not privileged" refers to "privileges" as that term is understood in the law of evidence.Reynolds, 345 U.S. at 6. When the Secretary lodged his formal claim of privilege, he invoked a privilege against revealing military secrets – one which is well established in the law of evidence.Reynolds, 345 U.S. at 6-7. When a claim of privilege against revealing military secrets is invoked, the courts must decide whether the occasion for invoking the privilege is appropriate, and yet do so without jeopardizing the security which the privilege was meant to protect.Reynolds, 345 U.S. at 7-8. When the formal claim of privilege was filed by the Secretary, under the circumstances indicating a reasonable possibility that military secrets were involved, there was a sufficient showing of privilege to cut off further demand for the documents on the showing of necessity for its compulsion that had been made.Reynolds, 345 U.S. at 10. In this case, the showing of necessity was greatly minimized by plaintiffs' rejection of the Judge Advocate General's offer to make the surviving crew member available for examination.Reynolds, 345 U.S. at 11. The doctrine in the criminal field that the Government can invoke its evidence privileges only at the price of letting the defendant go free has no application in a civil forum, where the Government is not the moving party, but is a defendant only on terms to which it has consented.Reynolds, 345 U.S. at 12.
In a suit under the Tort Claims Act, the District Court entered a judgment against the Government.10 F.R.D. 468. The Court of Appeals affirmed.Reynolds v. United States, The Supreme Court reversed and remanded.
Facts and background
A military aircraft on a flight to test secret electronic equipment crashed, and certain civilian observers aboard were killed. Their widows sued the United States under the Federal Tort Claims Act and moved under Rule 34 of the Federal Rules of Civil Procedure for production of the Air Force's accident investigation report and statements made by surviving crew members during the investigation. The Secretary of the Air Force filed a formal claim of privilege, stating that the matters were privileged against disclosure under the Air Force regulations issued under R. S. section 161, and that the aircraft and its personnel were "engaged in a highly secret mission." The Judge Advocate General filed an affidavit stating that the material could not be furnished "without seriously hampering national security," but he offered to produce the surviving crew members for examination by the plaintiffs and to permit them to testify as to all matters except those of a "classified nature." In the absence of the documents which the Air Force failed to produce, the trial court directed a summary judgment for the plaintiffs against the Government. The Appeals Court of the Third Circuit affirmed the decision. The United States appealed to the Supreme Court in certiorari.
Opinion
Majority opinion by Justice Vinson The majority opinion was written by Justice Fred M. Vinson. He wrote, "We have had broad propositions pressed upon us for decision. The Government has claimed privilege to withhold information in their custody, if it is in the public interest to do so. Respondents [plaintiffs] have asserted that the executive's power to withhold documents was waived by the Tort Claims Act. Both positions have constitutional overtones which we find it unnecessary to pass upon, there being a narrower ground for decision."
"The Federal Tort Claims Act expressly makes the Federal Rules of Civil Procedure applicable to suits against the United States. The judgment in this case imposed liability upon the Government by operation of Rule 37, for refusal to produce documents under Rule 34. Since Rule 34 compels production only of matters "not privileged," the essential question is whether there was a valid claim of privilege under the Rule. We hold that there was, and that, therefore, the judgment below subjected the United States to liability on terms to which Congress did not consent by the Tort Claims Act."
Dissenting opinion Justice Hugo Black, Justice Felix Frankfurter and Justice Robert H. Jackson filed a one sentence dissent indicating they agreed with the decision by Judge Maris in the earlier Court of Appeals decision.
Subsequent declassification of documents
The declassified accident report, released in 2000, is available online, and indicates that the B-29 crashed because a fire started in an engine.US District Court for the Eastern District of Pennsylvania, Appendix to Civil Action No. 9793, on the Federation of American Scientists' website, accessed 5 April 2023 This document also reports that the plaintiffs received a settlement of $170,000. The settlement date was effective June 22, 1953, some three months after the Supreme Court ruling. In consideration for the money paid by the government, the case was dismissed with prejudice, meaning all future litigation on this case was forfeited. The radio program This American Life reported in 2009, that, contrary to claims made in the case, the accident report contained no information on the secret equipment on the plane except to note that secret equipment was present, a fact which had been reported in the press at the time. The program interviewed the daughter of one of the crash victims who described the government's claims in the case as fraudulent.
After release of the classified documents, new litigation was attempted, based in part on a complaint that the classified material contained no secret information. Monetary damages were sought as a remedy. The initial new claim was to the Supreme Court for a writ of error in coram nobis, based on the claim that the use of the "secret" label in the original crash report was a fraud on the court. This was an attempt to overturn the settlement agreement of June 1953. This motion was denied on June 23, 2003 in In re Herring.. The case was refiled as Herring v. United States in the United States District Court for the Eastern District of Pennsylvania on October 1, 2003. The trial court found no fraud in the government's claim of privilege in 1953.
In 2005, the Court of Appeals for the Third Circuit upheld the decision in the new litigation, in which District Court determined "there was no fraud because the documents, read in their historical context, could have revealed secret information about the equipment being tested on the plane and, on a broader reading, the claim of privilege referred to both the mission and the workings of the B-29". Even without the broad reading that the claim included secrecy concerning the aircraft itself, the court found it possible that the documents' revelations "that the mission required an 'aircraft capable of dropping bombs' and that the mission required an airplane capable of 'operating at altitudes of 20,000 feet and above'" could have been "seemingly insignificant pieces of information [that] would have been of keen interest to a Soviet spy fifty years ago."
Discussion and criticism of privilege in Reynolds
There has been much discussion about the use of government privilege to classify information. On the one hand, there is the need to protect government secrecy. On the other, there is always suspicion that "classified documents" are merely a way to cover-up government malfeasance or bad faith actions of the executive branch.
Prosser and Keaton
Privilege is the modern term applied to those considerations which avoid liability where it might otherwise follow.Second Restatement of Torts, section 10. As it is generally used, the term applies to any circumstance used to justify or excuse a prima facie tort, such as an assault, battery or trespass. It signifies that the defendant has acted to further an interest of such social importance that it is entitled to protection, even at the expense of damage to the plaintiff. The defendant is allowed freedom of action because his own interests, or those of the public, require it, and because social policy will best be served by permitting it. The privilege is bounded by current ideas of what will most effectively promote the general welfare. The question of "privilege" as a defense arises almost exclusively in connection with intentional torts. Negligence is a matter of risk and probability of harm; and where the likelihood of injury to the plaintiff is relatively slight, the defendant will necessarily be allowed greater latitude than where the harm is intended, or substantially certain to follow. It is the bare value of the respective interests involved and the extent of the harm from which the act is intended to protect the one as compared with that which it is intended to cause to the other which determines the existence or nonexistence of the privilege.