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staff reporter Washington-The Bush administration has told the U.S. Supreme Court that the government did not lie to the high court 50 years ago in a case that effectively derailed a negligence suit brought by the widows of three civilian engineers killed in the 1948 crash of a B-29 airplane in Waycross, Ga. The justices had asked the solicitor general to respond to an unusual petition for a writ of error coram vobis to remedy fraud upon the high court. Relying on declassified documents, the lone surviving widow and the children of engineers filed the petition claiming that the Air Force lied half a century ago when it said the accident report on the crash was privileged because it contained military secrets. In re Patricia J. Herring , No. 02-M76. [NLJ, March 10.] The alleged lie was considered pivotal in the widows’ negligence suit: It served as the factual foundation for the high court’s establishment of the so-called state secrets privilege-the highest form of executive privilege-in U.S. v. Reynolds, 345 U.S. 1 (1953). The Reynolds decision erased the damages award to the widows and their children that they had secured in the federal trial court and had affirmed on appeal. Attacking the Herring petition on both procedural and substantive grounds, the solicitor general two weeks ago urged the justices to dismiss it. Reply to government Herring, the widow of Robert Reynolds, and the children of William H. Brauner and Albert H. Palya replied to the government’s brief last week, calling its positions “remarkable” and urging the justices to docket and decide their case. The high court may take up the matter in a conference later this month, said the survivors’ counsel, Wilson M. Brown III of Philadelphia’s Drinker Biddle & Reath. During a recent Internet search for information on the crash, Palya’s daughter discovered the accident report had been declassified. After acquiring and reading the report, she found nothing in it resembling military secrets. But the report concluded that the plane crash was caused by an engine fire and that a protective heat shield for the engine had not been installed as required by an Air Force directive. “The aircraft is not considered to have been safe for flight because of non-compliance” with that directive. The petition to the high court asks the justices to vacate Reynolds and restore the status quo prior to its ruling. After the ruling, the widows settled with the Air Force for $170,000. They seek the balance of $55,000 plus interest-an estimated $1.14 million-attorney fees and costs in an undetermined amount, but enough to act as a sanction for the government’s misconduct. The government argues that the families should go to a lower court with their petition. “The fraud was committed, if at all, in the trial court, court of appeals as well as in the Supreme Court,” its brief said. Their petition is an “extraordinary writ” and no exceptional circumstances warrant the granting of such a writ, said the government. The government also contends there was no fraud: “The Secretary [of the Air Force] was legitimately concerned that information about the confidential equipment and mission of this aircraft might be disclosed if the report and witness statements were released.” Its brief further argues that reopening cases once classified information has been declassified will create friction between the branches of government and will damage finality of judgments. In his response to the government, Brown said Air Force officials specifically said the accident report contained military secrets, and that was a lie. The fraud was only effective in the Supreme Court, and that is the place to remedy it. The government’s arguments, said Brown, would deny the Supreme Court the power to correct its own mistakes. “This Court is not powerless in the face of fraud,” he said. “It should now act in this case to set things right.” Coyle’s e-mail address is [email protected].

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