Legal Affairs
space


Current Issue

 
 
 
 


printer friendly
email this article
letter to the editor


space space space
space


January|February 2004
Mrs. America By Nadya Labi
A Short History of Sunsets By Chris Mooney
Daughters of the Cold War By Michael Freedman

Daughters of the Cold War

Three women sue the Air Force for covering up the deaths of their fathers in a 1948 test flight.

By Michael Freedman

ON A CLEAR AFTERNOON IN OCTOBER 1948, a B-29 Superfortress caught fire at 20,000 feet on a flight out of Robins Air Force Base in central Georgia. The plane fell rapidly 150 miles to the southeast, trailing black smoke. Three crew members and a passenger jumped and parachuted to safety. At 8,000 feet, the plane exploded. The nine men remaining on board were killed. Their body parts landed amid the plane’s wreckage in a field of autumn flowers near the Okefenokee Swamp outside the city of Waycross.

The dead included three civilian engineers who had been testing electronic equipment onboard the plane. Newspapers suggested their work involved “cosmic rays.” The engineers’ families could learn nothing more. The government refused to tell them anything about its investigation of the crash, claiming that the engineers’ electronics project was a military secret. Any disclosure about the cause of the accident, the Air Force said, might jeopardize national security by revealing the nature of their work.

The families’ fight for information landed at the Supreme Court, which sided with the government in the landmark 1953 ruling United States v. Reynolds. This was “a time of vigorous preparation for national defense,” in the words of Chief Justice Frederick M. Vinson, a Truman appointee. With the cold war underway, the Supreme Court allowed the government to keep secret a 51-page document filled with interviews of witnesses and a detailed narrative of the events that brought the plane down.

For half a century, Reynolds has exemplified the court’s trust in the military as the best arbiter of when to disclose confidential information. The ruling also suggested that the rest of the executive branch could keep documents secret, even from a judge. Reynolds was cited by President Richard Nixon when he tried unsuccessfully to justify withholding the incriminating tapes that led to his resignation, and more recently by the prosecutors of alleged Al Qaeda members Zacarias Moussaoui and Yasser Hamdi.

Now the families of the three engineers who died are back in court. They say the Supreme Court’s faith in the government was misplaced, because the Air Force lied.

IN HIS LAST MOMENTS, William Brauner knew what was coming. An engineer with Radio Corporation of America, he had been helped into a parachute shortly before the crash, but centrifugal forces trapped him inside the B-29. He left behind a 4-year-old daughter named Susan and a wife, Phyllis, who was six months pregnant with another girl, Cathy. Phyllis sold their house in Philadelphia and moved in with her widowed mother in Wellesley, Mass. She struggled to get through college and raise her children on a teachers’ salary and a small pension.

In 1949, Phyllis Brauner sued the government for negligence, in part to make up for the loss of her husband’s salary. Through a family friend she hired Charles J. Biddle, a formidable corporate lawyer at the Philadelphia firm of Drinker Biddle & Reath. Biddle was a World War I flying ace, a “pilot of marvelous spirit,” in the words of the citation for the French Croix de Guerre, an award for bravery that he earned for attacking two enemy planes over Germany. A graduate of Princeton and Harvard Law School, he brought to his firm some of the city’s biggest companies, including an insurance firm founded by Benjamin Franklin. He also joined forces with Thomas E. Dewey, the governor of New York and Republican presidential candidate, to defend Merck and other pharmaceuticals in a major price-fixing case.

Brauner convinced the widows of the other two engineers to join the negligence suit, which was filed in federal district court in Philadelphia. The judge ordered the government to produce the Air Force accident report about the crash. The government refused, citing its executive privilege to shield documents from public view. The report, an Air Force lawyer swore in an affidavit, could not be furnished “without seriously hampering national security, flying safety and the development of highly technical and secret military equipment.” Unmoved by the government’s protestations, the judge entered a judgment on behalf of the widows, awarding them a total of $225,000.

The government’s appeals worked their way to the Supreme Court, where, in October 1953, the solicitor general’s office argued that in the interest of national security, the executive branch could withhold any document—without showing it to a judge for “in camera,” or private, review.

Biddle countered that the secretary of the Air Force should not be allowed to adjudicate his own claim of privilege. No danger to the security of the nation would result from requiring the secretary to consult a trial judge, he argued. Biddle was optimistic about the widows’ chances. After all, he observed in a personal letter, granting the secretary unfettered discretion would provide a “great opportunity to cover up things in the Department.”

But five months later, the court came down unequivocally on the side of the government. The nation’s experience in World War II demonstrated the need to keep the electronics work secret so that its “full military advantage” could be exploited, the justices said. “Certainly,” Chief Justice Vinson wrote, “there was a reasonable danger that the accident investigation report would contain references to the secret electronic equipment” that the downed plane “had gone aloft to test.”

Blocked from probing the cause of the crash, the widows were advised to settle. “You work too hard to permit yourself the luxury of daydreams or wishful thinking,” a lawyer friend wrote to the Brauner family. In June 1953, the government paid each of the three widows between $39,000 and $50,000, along with $32,500 for Charles Biddle. The total was about $170,000, or $55,000 less than had been awarded at trial.

LIKE THE OTHER TWO WIDOWS, Phyllis Brauner moved on. Yet from time to time she or her daughters requested the classified Air Force accident report, hoping it would reveal more about William’s work. Each time it arrived with large sections blacked out.

Then in March 2000, Susan Brauner, Phyllis’s older daughter, got a postcard at her home in Harwichport, Mass., from a stranger named Judith Palya Loether. When her father Albert died in the B-29 explosion, Loether was an infant. She grew up knowing only the bare outlines of the story of his death and nothing about the 1953 Supreme Court decision denying her mother’s claim. As an adult, she was vaguely curious about the mysterious work she’d been told her father did. Poking around on the Internet, she looked for information about him. She knew that he’d worked on a navigation system used on B-29s during the Korean War. One evening in early 2000 she typed “B-29” and “accident” into the search engine AltaVista. Up popped a site called Accident-Report.com that offered declassified Air Force reports. Loether hoped there might be a report about her father’s crash, so she sent in $70 with a request for information.

She got back a fat stack of documents, which she paged through over the next several weeks. They described the crash in technical detail. As Loether pored over the papers with her husband, a harrowing tale of confusion and negligence emerged. Takeoff was normal, according to Herbert Moore, the surviving pilot. Then three of the plane’s four engines began to run hot. Pressure dropped. “Captain Erwin didn’t think there was too much cause for alarm,” Moore said, referring to the head pilot, “but we did put out our cigarettes.” Within minutes, an engine fire broke out. Moore unbuckled his seat belt and moved toward the bomb bay door. It opened as the plane spun out of control. Moore leapt from the plane with a parachute. Later, Air Force investigators concluded that the plane lacked the heat deflector shields required by regulation to avoid overheating. Without the shields, one investigator said, the plane was “not considered to have been safe for flight”—and in fact the engine caught fire, causing the crash. One survivor said the civilians on board hadn’t been briefed about how to get out of the plane, another breach of Air Force regulations.

Loether started going through old newspaper clippings her mother had collected about the crash. She noticed Susan Brauner’s name and with few expectations typed it into an Internet telephone directory. Loether got 20 hits and mailed a postcard to each address. Ten days later she got a postcard back from Susan. Excited but unsure that anything would come of it, they decided to meet for lunch with Cathy at the Wellesley Inn.

Loether shared her stack of documents and, for the first time, the Brauners saw the long-secret results of the internal Air Force investigation. Stunned, Susan and Cathy told the story of the Supreme Court case, which Loether’s Internet searches hadn’t turned up.

Loether downloaded a copy of the opinion and read everything in chronological order. She wanted to trust the court and the government, but she found herself left with the conviction that the Air Force had lied. There was nothing in the accident report about the engineers’ electronics work, only a confused tale of the plane crash. The claim about the engineers’ top-secret electronics work, she felt certain, was a fiction designed to mask the fatal series of errors and breached procedures. The Brauners reached the same unsettling conclusion. “What had been blacked out all those years ago was not government secrets,” Cathy Brauner wrote in her newspaper, “but the names of those who had been at fault.”

IT TOOK TIME FOR THE WOMEN TO ABSORB THE IMPORT of what they’d learned. For two years, they did nothing. Then on her way back from a family vacation in Florida, Loether decided to drive home to Massachusetts through Waycross to see the field where her father’s body had fallen.

To set up a visit, she called Robert Zachry, whose family owned the pasture. Zachry was 6 at the time of the explosion. He told Loether that he’d been playing cowboys and Indians in a nearby schoolyard with some kids when they heard the blast in the sky. He ran home. He’d barely recovered from his fright when one of the plane’s passengers came to the door. The man had leapt from the plane and parachuted to safety. Zachry remembers him sitting in their kitchen, shaken and quiet. Zachry’s mother, also upset, fixed him a cup of coffee.

One of Zachry’s sisters took Loether to the family’s pasture. Mature pine trees covered the land that had once been used for grazing cattle. Loether asked for a moment alone. She looked up at the sky and pictured her father falling. She tried to imagine his thoughts as he plunged. And she resolved to expose what she believed to be the government’s cover-up of the cause of his death. “It just seemed so huge to me that my government had lied in the Supreme Court of the United States,” she said.

WHEN LOETHER NEXT MET WITH THE BRAUNERS, including 75-year-old Patricia Reynolds, the only surviving widow, the women decided to ask the Supreme Court to reopen the 1953 case. They sent letters of inquiry to a half dozen lawyers. None offered to take the case.

Then Susan Brauner heard a radio story about a September 11 widow who was trying to get information about the security system at Logan Airport, where two of the hijacked flights originated, for a lawsuit against the airlines. The government refused to give the widow the documents she sought and cited Reynolds to support its contention that they could be kept secret without a judge’s review. Brauner called the reporter she’d heard on the air, who looked into the widows’ case and told her about Biddle’s involvement. Loether e-mailed him.

Biddle, it turned out, had died in 1972. But the partners at his still-prominent firm remembered his frustration over the Reynolds defeat. One of them, Wilson Brown III, read Loether’s e-mail and found the women’s excitement infectious. Helping them would be a break from defending insurers from toxic tort claims. Brown read the accident report and thought that nothing in it approached a military secret—and that the government seemed to admit liability for the crash.

In February 2003, Brown petitioned the Supreme Court, asking it to reinstate the district court’s judgment in favor of the widow. He asked for $1 million in damages, the $55,000 difference between the initial judgment and the settlement plus interest, compounded over 50 years. Brown knew the justices weren’t going to overturn the broad principle of executive privilege established in Reynolds, and his brief didn’t ask them to. But it did demand recognition that the government had lied.

The government responded by urging the court to keep the case closed. It would be impossible for the court to reach back 50 years and fairly assess the motives of the government officials who believed the accident report had to be kept secret, the solicitor general’s office argued. A month later, without comment, the Supreme Court refused to hear the women’s case.

Though disappointed, the women persevered. With Brown’s help, they filed suit in federal district court in Philadelphia, claiming that the government had “practiced fraud on this court” by lying 50 years ago to keep the crash secret. After a half-century of uncertainty, these women now think they hold the truth in a stack of documents. They are not about to let go.

Michael Freedman is Europe bureau chief for Forbes.

printer friendly email this article letter to the editor reprint premissions
space space space












space
Contact Us