BROOKE GLADSTONE: Classifying documents retroactively may be highly unusual, but when the Justice Department blocked Edmonds' from testifying in a 9/11-related lawsuit, it pulled a legal trigger that has become almost routine in the age of terror. It's called the "State Secrets Privilege." That privilege has an interesting history, beginning back in 1948 when an Air Force planed crashed in Georgia. Nine men died, among them four civilians, and three of their widows sued. The government argued that releasing documents related to their deaths would threaten national security, and it won. In U.S. versus Reynolds, a new and enduring legal precedent was set by the Supreme Court. But now, U.S. versus Reynolds is being challenged. The children of the dead have finally had a look at those half century-old documents, and they say they can find nothing at all that relates to national security. They charge the government with a cover-up, and in so doing suggest that the case that underpins the government's right to keep so many secrets is based on a fraud. In January, we spoke to Jonathan Turley, a professor at George Washington University Law School, and he explained exactly what precedent was set fifty years ago and what it meant.
JONATHAN TURLEY: What the court said was that trial judges needed to consider privilege arguments by the government, but the court also said that courts should struggle to remove only that evidence that clearly would violate national security. So the case itself really didn't give a hint of what it would become, because over the decades that followed, courts began to simply allow the privilege to be used almost unilaterally. A lot of district judges, frankly, don't want the headache of national security cases. And so when the government comes in with a silver bullet and says dismiss the whole case, a lot of judges are not complaining much.
BROOKE GLADSTONE: And is it seen as a silver bullet generally in the legal community or just by government lawyers?
JONATHAN TURLEY:Well, frankly when United States/Reynolds comes around, you pretty much know the government's on the ropes. This is the thing that they pull out when their case is not going well or they found something enormously embarrassing in the file. I've actually been in a courtroom where Reynolds was invoked, and people laughed. They actually invoked the privilege over a manual that was reportedly available on the internet, and reporters in the room were literally holding them up so the judge could see.
BROOKE GLADSTONE: And the judge still went with the government?
JONATHAN TURLEY: Yes.
BROOKE GLADSTONE:Well, let's go back to the original case - in Reynolds, the plaintiffs here are charging, the courts could have seen that the government was lying about its national security significance if it wanted to, and it simply chose to ignore it.
JONATHAN TURLEY: I think that is true - that the Supreme Court acted in what can only be viewed as willful blindness. At the time, it was abundantly clear to many that the Air Force was lying --that they could, in fact, produce this information -- if not in the direct report, in a summary of the report. So then in 2000, when finally these memos appear, we have this line in the memo saying: "The aircraft is not considered to have been safe for flight." That was the conclusion of the report. Now even if they had redacted the entirety of the report so that the basis of that conclusion is hidden, they should have at least produced that conclusion.
BROOKE GLADSTONE:But the courts at the time decided that that report could be kept secret, and now we have Reynolds today. And how has it been applied in the prosecution of the government's war on terror?
JONATHAN TURLEY: Attorney General Ashcroft took every possible case to muster in, in support of his national security efforts. Well, Reynolds was ready made for that. And now Reynolds has virtually become a stamp. I mean any case that involves remotely the military or national security or, you know, poultry regulations -- any type of civil liberties claim that's been brought since 9/11 has run right into Reynolds, and the government's come forward and said look, we can't tell you whether we're beating detainees, cause it would reveal state secrets. Well, that's bloody ridiculous. I mean if you're asking about whether detainees have been beaten, you're asking about whether a crime has occurred. That's not a matter of national security. It's a matter of criminal law.
BROOKE GLADSTONE: So let's return to the current challenge to Reynolds, which is called Herring versus the United States. Where does it stand?
JONATHAN TURLEY:Well, the daughter of one of the engineers on that fateful flight uncovered this smoking gun, if you will, where the, the memo which had no national security components but a heck of a lot of embarrassing stuff to say about the Air Force -- they filed with the Supreme Court and said look - it appears that you were lied to; you created a whole doctrine on an act of deception. Well, not surprisingly, the Supreme Court declined to take it up. This is an enormous embarrassment for them as an institution. They then filed in the federal district court, and once again, the Justice Department is moving to dismiss that action. The troubling thing about these filings is the apparent lack of recourse, when you find that the government lied -- not in a small way, but in a way that created this massive doctrine, and if the district court dismisses this action, then there really isn't any deterrent to the government from lying. I mean it --even when you can wave around a memo in which they clearly misled the Supreme Court of the United States, there's no recourse. Well that's going to send one hell of a message to Justice Department attorneys.
BROOKE GLADSTONE: Jonathan Turley, thank you very much.
JONATHAN TURLEY: Thank you.
BROOKE GLADSTONE:Jonathan Turley is a professor at George Washington University Law School. Two weeks ago the case was addressed for the first time in 50 years in federal district court in Philadelphia. The judge is likely to rule next month on the government's request to dismiss. [MUSIC]
BOB GARFIELD: Coming up, the many faces of Colin Powell, and the politics of mispronun--ciliation.