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									Los Angeles Times Sunday April 18, 2004
How the Death of Judy's Father Made America More Secretive Home Edition, Main News,
Page A-1 National Desk 240 inches; 8994 words

By Barry Siegel, Times Staff Writer

In a box delivered by rolling handcart on the morning of Feb. 26, 2003, the U.S. Supreme
Court received 40 copies of a petition so unusual a clerk decided he couldn't accept it for
filing. First, though, he turned through its pages.

In a preliminary statement, he read these words: Three widows stood before this court in
1952. Their husbands had died in the crash of an Air Force plane. The lower courts had
awarded them compensation. But the United States was bent on overturning their judgments,
and -- to accomplish this -- it committed a fraud not only upon the widows but upon this

Filed by a prominent Philadelphia law firm, this petition asked for an exceedingly rare writ of
error coram nobis -- an error committed in proceedings "before us." The petition's true author
-- at least in spirit -- was a middle-aged woman from Bolton, Mass., named Judy Palya
Loether. Her father had perished on that doomed Air Force plane when she was 7 weeks old.
For most of her life, he'd been a mystery. She felt certain he would have had an effect, would
have contributed to shaping a different Judy, perhaps a better Judy. Instead, she'd had a
stepfather who seemed to withhold love. She'd raised a family and served her community, but
she'd never lost her sense of wonder about her father, her desire to know him. In time, this
impulse drew her into the past. What Judy Palya Loether wanted the Supreme Court to do
was fix that past -- to fix its own 50-year-old error.

The clerk read on: At the heart of the case is a set of reports the Air Force prepared on the
accident.... The Air Force refused to produce these reports, even to the district judge.... The
United States took the case to this Court ... contending that the reports contained "militar
secrets" so sensitive not even the district court should see them.... This Court took the
government at its word, and reversed. But, it turns out that the Air Force's affidavits were
false. The Air Force recently declassified the accident reports. They include nothing
approaching a "military secret." ... In telling the Court otherwise, the Air Force lied.... It is for
this Court in exercise of its inherent power to remedy fraud, to put things right.

The clerk didn't need to puzzle over which long-ago case the petition addressed. Although
U.S. vs. Reynolds wasn't familiar to the public, law students everywhere knew it to be the
landmark 1953 ruling that formally established the government's "state secrets" privilege -- a
privilege that has enabled federal agencies to conceal conduct, withhold documents and block
troublesome civil litigation, including suits by whistle-blowers and possible victims of
U.S. vs. Reynolds' ramifications reach beyond civil law: By encouraging judicial deference
when the government claims national security secrets, it provides a fundamental basis for
much of the Bush administration's response to the Sept. 11 terrorist attacks, including the
USA Patriot Act and the handling of terrorist suspects. Although some judges and the
Supreme Court may be starting to resist, the "enemy combatants" Yaser Esam Hamdi and Jose
Padilla, for many months confined without access to lawyers, have felt the breath of
Reynolds. So has the accused terrorist Zacarias Moussaoui when federal prosecutors defied a
court order allowing him access to other accused terrorists. So have hundreds of detainees at
the U.S. Navy base at Guantanamo Bay, Cuba, held for more than two years without charges
or judicial review.

By asking the Supreme Court to "remedy fraud," Judy Palya Loether and others in the crash
victims' families were taking dead aim at the factual foundation of the state secrets privilege.
Long ago, Judy's mother and two other widows had tried to challenge the power o the federal
government. Now here came the families once again.

Two days after their petition arrived at the Supreme Court, the clerk's office returned all 40
copies to the Philadelphia law firm. Enclosed with the petitions were the firm's $300 check
for the filing fee and a letter explaining that "there are no provisions in the rules of this Court
to allow you to file such a document."

For 48 hours, the law firm and the clerk's office debated whether the Supreme Court could,
in fact, be asked for a writ of error coram nobis. In the end, the clerk's office advised the firm
to resubmit the petition with an attached motion asking the justices, in effect, for leave to file
something the clerk thought unacceptable. This time the petition didn't get sent back.

Judy Palya Loether typed e-mail messages and roamed the Internet. She fielded calls from
reporters. She heard from her father's aging colleagues. She began to imagine that she might
prevail. Here, she sensed, was a powerful way to right a wrong. More important, here was a
powerful way to find her father. Judy began to feel like Dorothy in the "Wizard of Oz."

"This whole journey of mine," she told those around her, "has changed my life."


Code-Named Project Banshee

As a young girl, Judy Palya Loether thought her father had invented everything. This wasn't
so, she later discovered, but to her, Al Palya could fairly be called a Renaissance man. She
knew he'd been born on a farm in northern Minnesota. She knew he could play a mean
saxophone and once saved a ship at sea with his ham radio. In family scrapbooks, she found
evidence that he'd won a Charleston dance contest. She read reports about the summer he
played his sax on a ship cruising to the Orient. She looked at travel films he made in half a
dozen of the country's national parks. Old letters, photographs, clippings -- they told Judy her
father was a tournament bridge player, a photographer, a bandleader, a singer, a carpenter.
They told her also that he was a genius at making things miniature. That's how he eventually
came to earn a living. First as an engineer at Minneapolis-Honeywell, then, beginning in
1945, at RCA in New Jersey.

His role at RCA mesmerized her. There, at the dawn of the Cold War, he had been assigned
to secret experimental work that RCA was doing for the military. In early 1946, RCA
contracted to develop a guidance system for pilot-less aircraft, code-named Project Banshee.
The goal, in an era before intercontinental missiles, was to launch drone planes that could
travel long distances and drop bombs on pinpoint targets. Other engineers thought this
notion defied the laws of physics. Judy's father insisted it could be done. In 1947, he and his
team of engineers began testing the Banshee system on board B-29 Superfortresses, the type
of plane used to drop the atomic bomb on Hiroshima and Nagasaki.

Poking around, Judy found a letter he wrote that summer to a colleague: All phases at present
going smoothly and expect to complete Banshee sometime in October. I had some results on
flight tests.... The plane [flies] in the right direction, but the run is by no means a straight
line. We have not progressed far enough to determine exactly what he trouble is ...

Other notes showed the deep love shared by Judy's father and mother. They'd met while Al
was studying engineering and playing in a popular dance band at the University of

He stood 5-feet-9, weighed 150 pounds, had blue eyes and brown hair. She thought he had a
wonderful smile. They married in June 1937 and drove to a Canadian honeymoon in his new
red convertible. They had a son, then another son.

By May 1948, after four merit raises at RCA, Palya was earning $6,720, the equivalent today
of about $100,000. On Aug. 16 of that year, his third child -- Judy -- was born. In the family
archives, she could never find this event mentioned by her father. She found only a photo of
her as an infant sitting in her mother's lap; was her father looking at his daughter through the
camera? She could not say. She knew only, from a note he scribbled, that six weeks after her
birth, on Oct. 1, he flew to Chicago and spent a weekend with his sister Lillian, talking about
the care of their widowed mother. Then, on Monday, he flew to Atlanta.

He was headed to Robins Air Force Base, south of Macon, Ga. They had one final Banshee
mission in a B-29 scheduled for Oct. 6. Al Palya didn't need to ride in the plane but planned
to anyway. As usual, he wanted to boost the morale of the technicians who had to handle the
daily grind.


In an Instant, a Pilot Without Power
Later, there would be some confusion at Robins as to why the scheduled 8 a.m. takeoff was
postponed. The copilot thought a gasket had to be replaced on their B-29. The flight engineer
thought the RCA team hadn't arrived. Whatever the reason, 1 p.m. became the new start

Standard procedure called for both crew and civilians to be briefed on emergency measures,
but it didn't happen. Like the initial delay, this lapse would be blamed on the troublesome
gasket and the late-arriving engineers. It didn't seem to matter to the crew. The Air Force
personnel, after all, were well-informed, and among the civilians, Judy's father and Bob
Reynolds, a young engineer on his RCA team, were squadron regulars.

Shortly after 1 p.m., 13 men climbed into the B-29's two pressurized cabins. One cabin was
fore and the other aft of the plane's giant bomb bays. Judy's father strapped himself into the
nose gunner's position in front of the pilots, the prize seat for sightseeing. Today's mission
was to test the Banshee guidance system on a five-hour round trip between Georgia and

The survivors of that mission would never forget what happened.

They fired up the engines. Before taxiing out, the flight engineer reported that the No. 2
engine was running a little hot, not uncommon on a B-29. On a power check, the pilot put
No. 2 at full throttle with turbo on for about four seconds. He found no loss of power. In
these postwar months, airmen at Robins were used to flying with below-par engines, and
weren't likely to scratch a flight because one didn't perform to specs. "It will clear up," the
pilot told his crew.

He lowered the flaps to 20 degrees and asked if all the men were ready. At 1:28 p.m., the B-29
-- 111,000 pounds, 99 feet long, with four 2,500-horsepower engines on a 141-foot wingspan
-- rolled down the Robins runway.

They retracted the landing gear and climbed through light cumulus clouds, with power at a
standard 2,400 rpm and 43 inches of manifold air pressure. At 4,000 feet, just as the
B-29 cleared the clouds, the flight engineer reported that engines No. 1, 2 and 4 were running
warm. This was not unusual, especially in the Georgia heat. The pilot boosted air speed and
reduced power to 40 inches of manifold air pressure, which meant the nose went down and
air flow increased over the engines.

The plane kept climbing. Then, in an instant, at 18,500 feet, the pilot lost power on engine
No. 1. Manifold air pressure inside the engine dropped from 40 to 23 inches. Fuel
consumption fell. The pilot asked about other readings. All else normal, the flight engineer
Neither the pilot nor copilot was overly alarmed. They put out their cigarettes, though. A
moment later, the pilot advised everybody to strap on a parachute. The civilians scrambled to
obey. Eugene Mechler, an engineer with the Franklin Institute, an RCA subcontractor,
helped his colleague William Brauner fasten his snaps. Mechler, back behind the bomb bay,
could not see Judy's father in the plane's nose. He'd later say, "Al had the prize seat for
sightseeing, and I had the best seat for escaping."

At 20,000 feet, the pilot leveled off and reduced power on his three good engines, taking
them down to 2,100 rpm and 31 inches of manifold air pressure. He asked the flight engineer
to try to raise the pressure manually on No. 1. The engineer worked the emergency amplifier
system until he had No. 1 at 31 inches. It wouldn't hold, though; an instant later, pressure fell
back to 23.

Now they knew they had a problem. The B-29 Superfortress had been the most formidable
bombing aircraft of World War II, but from the beginning its engines tended to overheat.
What's more, their crankcases were made of magnesium alloy, which is highly flammable.
The pilot decided to "feather" No. 1, which meant turning it off after positioning the propeller
so it wouldn't keep rotating in the wind. Looking out his window, he accidentally pushed the
button for No. 4 instead.

The copilot, noticing immediately, turned No. 4 back on -- or at least thought he did; No. 4
would later be found in the feathered position. The pilot, meanwhile, pressed the correct
button to shut down No. 1. They felt the slight vibration that comes when an engine is turned
off in flight.

It was too late. Even before No. 1 stilled, the flight engineer saw the engine access doors turn
light brown. Then a crew member scanning the left side reported smoke.

The pilot ordered the flight engineer to trigger the fire extinguisher on No. 1. That seemed to
work -- the smoke disappeared. But five seconds later, it came back. This time there was fire
too. In an instant, it engulfed the aft half of the engine. Then the entire engine, then the wing
area behind the engine. Flames flashed past the left scanner's window. The whole left wing
was on fire.

"Engine No. 1 on fire," shouted the left scanner, over and over. "Engine No. 1 on fire."

Judy's father sat alone in the nose. Al Palya's view was forward to an empty sky free of

The pilot started a descent. He ordered the cabin depressurized so his crew could open the
escape hatches. The civilians tugged at the parachutes on their backs; the crew scrambled for

"What's wrong with No. 2?" the pilot asked.
Manifold air pressure in No. 2 had dropped to 20 inches. They were in a moderate dive,
banking about 20 degrees to the left. The pilot fought the bank, pulling hard to the right, his
wheel turned more than 90 degrees.

"Stand by to abandon ship," he said.

Farther back in the plane, the Franklin engineer Eugene Mechler saw sheets of flame shoot
past a window. He couldn't believe it. He felt safe inside this huge hull. Planes land with an
engine on fire all the time, he kept thinking. This pilot will get us down OK. I'd rather stay
with the ship than parachute.

The left scanner popped the rear escape hatch. The pilot opened the bomb bay doors. In that
instant, the aircraft went into a violent spin to the left, probably caused by drag from the
open doors or the damaged left wing. Centrifugal force pinned the crew. It plastered
everyone to the floor in piles, one body atop another, unable to move.

The pressure eased slightly, just enough for some of the men to stir. Up front, the copilot
stepped toward the forward nose escape hatch. The plane banked, throwing the flight
engineer into the hatch. He stuck there, face up in the well, his parachute on his back. The
nose gear had extended, but not enough to allow escape. The copilot, standing over him,
stuck a foot down and kicked him through. An instant later, the copilot
followed, jumping at 15,000 feet.

Farther to the rear, the left scanner blacked out, woke, slid through the bomb bay escape
hatch and pulled his rip cord. Eugene Mechler crawled after him, pausing a moment to grab
his parachute release handle. As he jumped, he yanked. My gosh, he thought. I pulled it too
soon, the chute will foul on the plane.

It didn't. Mechler slowed as his chute opened. There was the earth, just below him. There
too, in the air around him, were the left scanner, the flight engineer and the copilot.

Those four lived. The nine other men did not. The RCA engineer Bob Reynolds and the
Franklin engineer William Brauner couldn't escape the centrifugal force that held them in
the rear compartment. Judy's father managed to leap from the plane -- but he either failed to
pull his rip cord or jumped too low.

As they parachuted to the ground, the four survivors heard a puff in the sky and saw falling
pieces of metal. It was 2:08 p.m. The B-29 had been airborne for 40 minutes, but would fly
no more. Witnesses heard an explosion louder than thunder, more like a bomb. Looking up,
they watched the plane disintegrate as it plummeted.

Engine No. 4 came off, then the outer panel of the left wing, then No. 1 and No. 3. All control
surfaces, wing flaps and portions of the stabilizers tore loose. The fuselage broke in two at the
rear bomb bay. Most of the parts rained down on the Zachry family's 340-acre cattle farm,
just off the dirt Gibbs Street extension, two miles south of Waycross, Ga.

"Well, I can tell you," Bernard Zachry would report half a century later, "anyone who lives in
Waycross remembers it. Biggest thing that ever happened here."


'I Regret to Inform'

In his barn, Robert Zachry heard the B-29 explode. He told his 4-year-old son, Michael, to
run for the house, then jumped on his quarter horse and rode out to open the gate on Gibbs
Street. The authorities, he knew, would need to get onto his land.

Michael was sprinting past the pump house when the plane hit the ground. He dived into the
grass, jumped up and started running again. His 6-year-old brother, Bernard, should have
been on the school playground but instead was across the street playing cowboys and Indians
with his buddy Joey and a girl whom they'd tied to a tree.

Bernard saw it all, the plane falling from the sky, the fire and smoke, the parachutes, one
engine knocking over their fence, another landing near the schoolyard. He also saw the
school principal shouting at him as she came across the road, a heavyset woman trying to
climb a fence to get to the wayward children. Bernard's mother reached them first. She
scooped him up as the principal grabbed Joey. Bernard never could recall anyone untying the

He remembered the crowd that gathered, though. Waycross had some 30,000 citizens then,
and a fair share of them were pushing on the Zachry family's fence. Bernard's mother tried to
keep people from knocking it down. He and his brother watched a man climb over the fence,
pick up a severed arm and remove a watch.

Soon sirens filled the air. The local police and the state patrol arrived, then the ambulances,
the Red Cross, the military, the reporters and photographers. Uniformed officers from Robins
Air Force Base began holding everyone back, including the local cops and firemen. From the
B-29's tail section, a Robins engineer removed the Banshee project's equipment.

What Bernard and Michael would remember most was the knock on the back door of their
home. When they opened it, there stood one of the men -- the left scanner. He had a sprained
ankle and appeared shaken. Bernard's mother took him in, gave him a cup of coffee. His
parachute hadn't opened all the way, he told them. If he hadn't landed in their gator pond,
out near the swamp, he might not have made it.

Searchers found the bodies of the nine who hadn't survived in and near the wreckage. Three
were civilian engineers from RCA and Franklin -- Bob Reynolds, William Brauner and Judy's
father. Al Palya lay by himself, an unopened parachute on his back, free of the aircraft in a
field of clover.

Three hours later, a pilot friend knocked on Patricia Reynolds' door near Robins Air Force
Base. "Pat," he said, "there's been an accident down at Waycross. We don't know who

She was the only widow close enough to get to the crash site. They drove the 90 miles in near
silence, Pat lost in thought. Her husband, Bob, hadn't even been scheduled to fly this day;
another engineer had asked if he would cover for him. They were still kids on a honeymoon,
he 24, she 20. They'd risen near dawn and walked the hills at 5:30, holding hands. That would
be her last memory of him.

In Pennsylvania, William Brauner's wife, Phyllis, pregnant with her second daughter, also got
word. Will and I, she liked to say, did all our arguing before marriage, then never. They had
a 4-year-old daughter, Susan, who would never forget sitting on the stairs that day, watching
her mother sobbing and rocking until a doctor rushed in with a black bag to sedate her. Susan
also would never forget waving goodbye to her daddy the morning he left them. As he turned
to wave back, she thought, I'll never see him again.

In New Jersey, a telegram arrived at the home of Judy and her mother, Elizabeth: I regret to
inform that Mr. A. Palya has died due to injuries received in an aircraft accident at
Waycross, GA.... The deceased is now at Mincy Funeral Home, 516 Pendleton St., Waycross,
GA. Kindly wire collect whether you desire remains to be shipped direct to your home or to a
designated funeral home or mortuary, furnishing the name and address of funeral director
selected by you to receive remains. Deepest sympathy is extended ...

Betty Palya studied newspaper photos. One featured a solitary body prone on the Waycross
farm, covered by a blanket. Her husband had been the only civilian found outside the aircraft;
most likely, this was Al. By her side, she had all the letters he wrote as he traveled on
business. It's Saturday, only one week -- 7 days -- till I stand by the railroad tracks waiting
for your train.... Honey I can't start telling you how thrilled I am. Honest I can hardly sit still

She'd met him when she came to study with his sister, a friend of hers. Their courtship had
lasted three years. Then one day he'd said, "Let's get married." She'd tried always to be a
good, loving housewife and companion. Now she vowed to be a good and loving single
mother to three young children.

She'd still make all their clothes, their draperies, their bedspreads, their slipcovers. She'd still
cook big meals each night -- a meat, a potato, a vegetable, a salad, a dessert, the colors varied,
not all the same. She'd still set the table with a tablecloth, the glasses placed at the tip of the
knives. She'd still make fudge every Friday night, spaghetti with meatballs every Saturday
night, the sauce simmering in the kitchen all day. Judy would forever remember those meals,
those weekend smells, that resolve by her mother to shelter them from their loss.

Mincy Funeral Home's bill to prepare and ship Al Palya's body to New Jersey came to
$681.27. On Friday, Oct. 8, his close colleague Walter Frick -- who'd originally been
scheduled to fly on the doomed B-29 -- escorted the body home, overwhelmed with sadness
about the infant daughter who would never know her father. Services were held the next
Monday in Haddon Heights, N.J. They buried Al Palya later that week in Tabor, Minn.,
where he'd been born and raised. His widow and three children stood by as they lowered his
casket into the earth. That afternoon, Judy Palya was two days short of being 2 months old.


A Plane With a Troubled History

At least to the public, the crash of a B-29 flying over Waycross remained a mystery. One
newspaper informed citizens only that the "plane was on a secret mission testing secret
electronic equipment.... Guards were sent to recover and protect as much of the confidential
equipment as possible." Another report advised that "full details of the plane's mission were
not disclosed, but it was believed that it may have been engaged in cosmic ray research."

The copilot, through a military spokesman, did describe how one engine caught fire and
another lost power before the plane went into a severe spin. The copilot advised reporters,
however, that he "could not discuss" the cause of the explosion or how he and the others

Then, in late November, seven weeks after the crash, RCA Executive Vice President Frank
Folsom mailed a typed, four-page, single-spaced letter to Hoyt Vandenberg, commanding
general of the Air Force. Folsom, 54, would a year later become the president of RCA. He
knew the military: From 1941 to 1943, he'd been chief procurement officer of the U.S. Navy.

He'd also been Al Palya's and Bob Reynolds' employer, and indirectly, through the Franklin
subcontractor, William Brauner's as well. From his letter to Vandenberg, it was clear that
Folsom, drawing upon inside sources, knew what had happened to his men in the doomed B-
29. Despite his restrained tone, he sounded deeply disturbed.

Although we have not received authoritative information from the Air Force regarding the
cause of the accident, it appears from available informal information that one of the engines
caught fire, followed shortly by a loss of power in a second engine. At about the same time
the plane went into a tight spiral.... The resulting centrifugal force prevented escape....
The civilian engineers had received no preflight briefing in emergency bailout procedures....
This particular airplane had a long history of unsatisfactory performance.... We feel that it
is probable that there was some confusion among the pilot, copilot and flight engineer ...
Folsom then laid down a not-overly-subtle threat: Steps will be required to assure that our
engineers will be willing to assume the unavoidable risks incident to flight tests in military
aircraft.... This accident has firmly impressed upon our engineering staff the danger of flying
in military aircraft.

Folsom wanted newer, safer planes. He wanted all safety regulations followed. He wanted
first-rate flight crews. He wanted "frank and open disclosure of all facts regarding the
maintenance and operation of airplanes." He wanted his own independent inspection of Air
Force planes. And, when a crash occurred, he wanted the official accident report.

Folsom's letter clearly rattled the military command, which depended on RCA's technical
expertise. Copies moved up and down the Air Force hierarchy, at each stop drawing memos
directed at others in the chain of command. Most troubling to the military was what Folsom's
letter didn't say, what Folsom didn't know. By then, Air Force officers had in hand the
official report of their own accident investigation. It not only confirmed Folsom's charges, it
added to them.

The report made clear the doomed B-29 was a problem plane that had spent more time in
maintenance than in the air. A crew flying it from Ohio to Florida on June 24, 1947,
experienced so many malfunctions during takeoff and initial flight that they turned back after
20 minutes. They landed at Wright Field in Dayton with three engines "on red cross," which
meant the plane was grounded for repairs.

Worse, the Air Force had not complied with several maintenance directives for this B-29 --
including two critical technical orders that addressed the threat of engine fires. The orders,
dated May 1, 1947, called for installation of deflector shields to avoid overheating and
eliminate a "definite fire hazard." Because of the technical order "noncompliance," the
accident report advised, the aircraft had been on a cautionary "red diagonal" but had been
"released for flight by signing of an exceptional release." The report concluded: "The aircraft is
not considered to have been safe for flight because of noncompliance with [the] technical

None of this information made it into the reply that the Air Force eventually sent to Frank
Folsom. In a letter dated Feb. 17, 1949, some 4 1/2 months after the accident, an assistant vice
chief of staff dismissed the RCA executive's concerns.

"There is no question regarding safety procedures," Maj. Gen. William McKee advised.
"Constant emphasis is placed on this phase of operations.... The Air Force is most anxious to
conserve property and life and under no conditions, except extreme emergency, are aircraft
permitted to fly when safety is in question."

McKee assured Folsom that his "personal interest in this matter is deeply appreciated." He
assured also that "every possible action will be taken to maintain full mutual confidence" with
civilian contractors. However, "due to the purpose and nature of the Accident Report, it is
impossible to furnish copies."


Three Widows and an Unlikely Lawyer

At age 20, Pat Reynolds returned to Indianapolis and her mother's home. It was not a time,
she would later say, when people readily spoke out against their country. There'd been the
Depression, World War II, and then the start of the Cold War. Everyone respected authority.
There wasn't a lot of resistance to anything. "What we knew," Pat recalled, "was 'loose lips
sink ships.' "

Phyllis Brauner sold the family house in Pennsylvania and moved in with her mother, the
two buying a home in Wellesley, Mass. Marriage had derailed her education plans, but now
she returned to school, aiming to earn a doctorate in chemistry.

Elizabeth Palya remained in New Jersey, collecting $63.34 a month from Social Security and
teaching high school home economics to support three young children. As she ran their
household -- always doing something -- Judy watched and listened, learning how to shop for
fabric, how to beat fudge to a glossy sheen, how to cut the taste of acid in spaghetti sauce.

It was an attorney friend of Phyllis Brauner's late husband who first suggested they file a
lawsuit against the government. By January 1949, Judy's mother had expressed interest in
joining such a claim and sharing a lawyer. In April, they fixed on one: Charles Biddle of
Drinker Biddle & Reath in Philadelphia. Judy's mother sent a check for $50, her share of
Biddle's retainer.

This was an uncommon case for Biddle. He generally was a lawyer to the rich, a well-
ensconced member of the establishment. The Biddles, a legendary family of bankers,
diplomats, lawyers, politicians and military men, were one of Philadelphia's first families,
there since early in the 19th century, when Nicholas Biddle bought property on the bank of
the Delaware River, 13 miles upstream from the city. Nicholas Biddle was the most powerful
banker of his time, director of the Second Bank of the United States and a ceaseless combatant
with President Andrew Jackson for control of the nation's currency. At the 123-acre family
estate, called Andalusia, his guests included John Quincy Adams, Daniel Webster, the
Marquis de Lafayette and Joseph Bonaparte, the former king of Spain.

In Charles Biddle's time, Andalusia still clung to customs and codes from the Victorian era.
The family gathered in coat and tie, even in the heat of summer, for a traditional Sunday
dinner of roast beef, rice and peas. Charles traveled to Scotland every year to shoot grouse.
His family summered in Maine, loading suitcases, ice boxes, nannies, gardeners, butlers and
maids onto two private railroad cars. At his law firm in downtown Philadelphia, most knew
Charles as Mr. Biddle. His old-fashioned patrician style -- easy, self-confident, relaxed -- rose
from his talents and from his station in life. It masked the mind of a tough litigator. He was a
Republican to the core.

None of this, though, was Charles Biddle's chief claim to fame. Above all else, he was known
as a World War I flying ace. As a member of the Lafayette Escadrille, he served in both the
French Army Air Force and the American Expeditionary Force. He shot down 11 German
planes. In April 1918, while attacking German two-seaters at low altitude behind enemy
lines, he was hit, wounded and forced down, but managed, under heavy fire, to dodge his
way to an advanced British observation post. He was awarded the Distinguished Service
Cross, the Purple Heart, the French Legion of Honor, the Croix de Guerre with three palms,
and the Belgian Ordre de Leopold.

Biddle was 59 when the B-29 case came his way in the spring of 1949. Although it wasn't his
custom to represent cash-strapped widows or challenge the government's high seats of power,
he couldn't resist. What drew him most was the story of a B-29 going down -- and the secrets
it held.

On June 21, in federal district court in Philadelphia, he filed the initial complaint, Phyllis
Brauner and Elizabeth Palya vs. the United States of America, seeking $300,000 for each
widow. He also called Pat Reynolds in Indianapolis. She'd turned down his first invitations to
join the lawsuit. At 20, she had no children and wasn't interested in the money. Even more,
she wasn't interested in immersing herself in this matter; deep denial felt better. Now Biddle,
trying again, told her he respected how she felt, but feared she'd jeopardize the other
two women's case if she didn't get involved.

Biddle's words brought to mind images of Bob that Pat would remember always. He'd just
glowed from the minute she met him. They went to a movie that first night, then sat outside
singing an old camp song -- Tell me why the stars do shine -- in perfect two-part harmony,
her voice a sultry contralto. They married three months later and headed to Florida on a B-
17, Pat in the nose, smuggled aboard -- her first plane ride. RCA had assigned Bob to the
Banshee project.

OK, Pat said finally. Sign me up.

This Biddle did, in a second complaint filed on Sept. 27. A month later, the government
answered, denying any negligence, claiming it "was in no manner responsible for the

In January 1950, during the discovery process, Biddle asked government lawyers a critical
question: "Have any modifications been prescribed by [the government] for the engines in its
B-29 type aircraft to prevent overheating of the engines and/or to reduce the fire hazard in
the engines?"
The answer -- from U.S. Atty. Gerald Gleeson and Assistant U.S. Atty. Thomas Curtin -- was
as succinct as it was false: "No."

Soon after, Biddle tried to force the government to produce its official accident report and
statements of the three surviving crew members. The government lawyers refused. There was
no mention yet of "state secrets" or "national security"; the government claimed only that
these documents, arising from the military's internal investigation, were a "privileged part of
the executive files."

On June 30, after hearing arguments, U.S. District Judge William H. Kirkpatrick delivered his
opinion: an unqualified ruling in favor of the three widows. The plaintiffs don't know why
the accident happened, he pointed out. If anyone knows, it's the government. So the
government should hand over the accident report and the statements.

Kirkpatrick had his eye fixed on just what kind of privilege the government was claiming --
and not claiming: "The Government does not here contend that this is a case involving the
well recognized common law privilege protecting state secrets.... In effect, the Government
claims a new kind of privilege. Its position is that the proceedings should be privileged in
order to allow ... free and unhampered self-criticism within the service.... I can find no
recognition in the law of the existence of such a privilege."

The government still refused to produce the accident report. At the end of July, the three
widows found a letter in their mailboxes. Biddle was writing with uncommon exasperation.

"To my mind it is perfect nonsense after all these years when B-29s have had accidents all
over the world to say that a report on what caused this accident is a secret which should not
be disclosed. Obviously, we are not interested in any secret devices which may have been on
board but which had nothing to do with causing the accident. And in any event, the answer
... is to let the Court look at the report and if there is anything which should not be made
public, the Judge can authorize that it be withheld.... The violent objection to producing [the
accident report] on the part of the Air Force naturally makes one suspicious that it may
contain some conclusions very unfavorable to the Government's case."

The issues crystallized at a rehearing before Kirkpatrick on Aug. 9, 1950, in Washington, D.C.
Only now did the government invoke a state secrets privilege. In support of a motion for this
rehearing, the Air Force had submitted two sworn affidavits, one signed by Thomas Finletter,
the secretary of the Air Force, the other by Reginald Harmon, the Air Force judge advocate

The government "further objects to the production of this report," Finletter declared, "for the
reason that the aircraft in question, together with the personnel on board, were engaged in a
highly secret mission of the Air Force. The airplane likewise carried confidential equipment
and any disclosure of its missions or information concerning its operation ... would not be in
the public interest."
Harmon added: "Such information and findings of the accident investigation board which
have been demanded by the plaintiffs cannot be furnished without seriously hampering
national security."

The government's purpose seemed clear to Biddle. The Department of Justice wasn't merely
resisting a lawsuit filed by three widows; it was intentionally trying to set a far-reaching
precedent. While a state secrets privilege existed in common law, it had never been formally
recognized by the Supreme Court. Biddle felt sure that his opponents meant to make this a
test case. With the Cold War intensifying, so too was the government's determination to
marshal all possible powers.

On the bench, Kirkpatrick held the two affidavits in his hand. He'd been a lieutenant colonel
in the Army during World War I, so he understood the needs of the military. He was the
chief judge of his district, a Republican appointed by Calvin Coolidge. Something troubled
him, though. Are you changing your reason for withholding the accident report? he asked the
government lawyers. Does your original reason stand? You're not now contending that this
case involves national security and the state secrets privilege?

We do here contend that, replied the government lawyer, Thomas Curtin. He wanted it
emphasized: He was now making a claim of state secrets privilege.

"That claim has been made in other cases," Kirkpatrick pointed out, "and it has been usually
met by submission of the [documents] to the court to determine whether or not it is data
which would imperil the safety of the military position of the United States."

Now their debate drove to the heart of the matter.

Curtin: "We do not believe that is good law. We contend that the findings of the head of the
department are binding, and the judiciary cannot waive it."

Kirkpatrick: "It is an important question. I suppose, just to state a wholly imaginary and
rather fantastic case, suppose you had a collision between a mail truck and a taxicab, and the
attorney general came in and said that in his opinion discovery in the case would imperil the
whole military position of the United States, and so forth. Would the court have to accept
that? Is that where this argument leads?"

Curtin: "I think you could interpret it that way."

Kirkpatrick: "I only want to know where your argument leads."

Curtin: "Under the statute, we contend it is final."

Kirkpatrick: "Your argument would lead to the point that I suggested?"
Curtin: "There is no other interpretation. In other words, I say that the executive is the
person who must make that determination, not the judiciary.... In this particular case, the
executive having made that determination, I submit, sir, it is binding upon the judiciary. You
cannot review it or interpret it. That is what it comes down to."

Kirkpatrick wouldn't let pass that the government, in midstream, had changed its reason for
not producing documents. "Of course," he said, "there is another fact, that this particular
claim of privilege ... was not made at the time. I carefully read the briefs, and it was not
suggested there that there was any claim of [state secrets] privilege."

Two years after the crash, one year after the lawsuit was filed, Curtin now said: "In my
[initial] claim, I didn't even know what the trip was, or what was even on the plane, as a
matter of fact."

"All right," Kirkpatrick responded. "It is an old controversy."

He'd made up his mind, though. The next month he issued an amended ruling, ordering the
government to produce the documents for him to inspect alone in his chambers. When the
government refused, Kirkpatrick entered a judgment by default in favor of Judy's mother and
the other two widows.

They had won round one.

After a trial to determine the value of their husbands' lives -- defined as their lost earnings --
Kirkpatrick granted Betty Palya and Phyllis Brauner $80,000 each (the equivalent of
$622,075 today) and Pat Reynolds $65,000 (the equivalent of $505,397). Relief, if not
celebration, filled their households. The three women looked forward to relative financial
security. This despite a letter each received a week later from Charles Biddle. "It may be quite
some time before anything is collected," he warned, "for I believe that the Government will
in all probability appeal."


The Highest Court in the Land

The government waited five months. Not until April 1951 did it ask the U.S. 3rd Circuit
Court of Appeals to overturn Kirkpatrick's ruling. Half a year later, on Oct. 19, Biddle and the
government attorneys argued their cases before a three-judge appellate panel. On Dec. 11
came the panel's opinion, written by Judge Albert Maris, a highly regarded jurist and law
professor appointed by Franklin D. Roosevelt.

Ruling in favor of the three widows, Maris offered a resounding affirmation of Kirkpatrick's
decision, which he quoted at length. Maris went even further than Kirkpatrick in addressing
the critical underlying issues. In words that sound as fresh today as when written, he made
plain that he saw clear dangers in what the government sought.

Maris first addressed the government's claim that disclosure of the accident report would
hamper open investigations: "We regard the recognition of such a sweeping privilege as
contrary to a sound public policy. It is but a small step to assert a privilege against any
disclosure of records merely because they might prove embarrassing to government officers.
Indeed, it requires no great flight of imagination to realize that ... the privilege against
disclosure might gradually be enlarged ... until, as is the case in some nations today, it
embraced the whole range of government activities."

Then Maris turned to the government's second basis for a claim of privilege -- state secrets.
Like Kirkpatrick, he recognized that the government had advanced this argument only
belatedly. Also like Kirkpatrick, he found the government's claim deeply troubling. What
bothered him most was the assertion that the executive branch had unilateral power, free of
judicial review, to decide what could be kept secret.

Maris pointed out that Kirkpatrick hadn't ordered any documents to be disclosed; he'd only
directed that they be produced for private examination in his chambers. "The Government
was thus adequately protected," Maris wrote. "[But] the Government contends that it is
within the sole province of the Secretary of the Air Force to determine whether any
privileged material is contained in the documents and that his determination must be
accepted by the district court without any independent consideration.... We cannot accede to
this proposition.... To hold that the head of an executive department of the Government
in a suit to which the United States is a party may conclusively determine the Government's
claim of privilege is to abdicate the judicial function."

Maris' conclusion: "The judgments entered in favor of the plaintiffs will be affirmed."

Round two also had gone to the three widows.

Charles Biddle, of course, knew what was coming. Three months later, the solicitor general
filed a petition for a writ of certiorari -- a request for the Supreme Court to hear the case.
On April 8, 1952, the Supreme Court agreed to adjudicate what was now known as United
States vs. Reynolds Et Al.

From both sides came thick briefs arguing their positions and defining what was at stake. The
government gave no quarter. Neither did Biddle. "The basic question here," he wrote, "is
whether those in charge of government departments may refuse to produce documents
properly demanded, in a case where the government is a party, simply because the officials
think it would be better to keep them secret, and this without the Courts having any power
to question."
Biddle concluded: "The Secretary of the Air Force may not assert he alone shall be the judge
of whether his own claim is well founded.... This matter reaches to bedrock."

In early September 1952, the clerk of the Supreme Court advised the lawyers for both sides
that they should be present on Tuesday, Oct. 21, for oral arguments. On that fall day, at 1:30
p.m., Charles Biddle appeared before the court in striped pants, black tie and black frock coat
with tails. Each side was allotted one hour for its argument, with a half-hour recess between
the two presentations. The judges, another attorney present later reported to Phyllis Brauner,
"were quite interested and shot questions at the lawyers arguing the case and one never really
was quite certain on whose side their sympathies lay."

This became clear 4 1/2 months later, on March 9, 1953, when the Supreme Court delivered
its opinion in U.S. vs. Reynolds. The government, wrote Chief Justice Fred Vinson for a 6-3
majority, had made a valid claim of privilege against revealing military secrets, a privilege
"well established in the law of evidence." The decisions of the District Court and the Court of
Appeals -- of Judge Kirkpatrick and Judge Maris -- were therefore reversed.

By "well established," the Supreme Court meant that the state secrets privilege was rooted in
common law. Now, though, the high court formally recognized it, which made it binding on
all courts throughout the nation.

The justices also spelled out a procedure for how the privilege should be applied. The
privilege must be asserted by the government, they instructed, and it is not to be lightly
invoked. There must be a formal claim lodged by the head of a department only after his
personal consideration. The court itself must determine "whether the circumstances are
appropriate for the claim of privilege," and yet do so "without forcing disclosure of the very
thing the privilege is designed to protect."

This last, of course, was the tricky part. To resolve it, Vinson presented a "formula of
compromise" that essentially said the government shouldn't have absolute autonomy, but
courts shouldn't always insist on seeing the documents. You can't abdicate control over the
evidence, Vinson instructed trial judges, but if the government can satisfy you that a
reasonable danger to national security exists, you shouldn't insist upon examining the
documents, even alone in chambers.

U.S. vs. Reynolds clearly rose from the context of the times. In 1949, the Soviet Union had
staged its first atomic bomb test, and in October 1951 had dropped a bomb from its own
version of a B-29. In March 1953, the Cold War was intensifying, the Korean War still
waging, McCarthyism spreading. Fourteen weeks later, Julius and Ethel Rosenberg would be
executed as spies, the Supreme Court having denied a last-minute stay. Like now, a threat
appeared to exist not just overseas but on America's own shores. Chief Justice Vinson
acknowledged all this in a conclusion that could have been written today.
"In the instance we cannot escape judicial notice that this is a time of vigorous preparation for
national defense. Experience in the past war has made it common knowledge that air power is
one of the most potent weapons in our scheme of defense, and that newly developing
electronic devices must be kept secret if their full military advantage is to be exploited in the
national interests. On the record before the trial court, it appeared that this accident occurred
to a military plane which had gone aloft to test electronic equipment. Certainly there was a
reasonable danger that the accident investigation report would contain references to the
secret electronic equipment which was the primary concern of the mission."

At bottom, Vinson's opinion represented an act of faith. We must believe the government, he
held, when it claims this B-29 accident report would reveal state secrets.

The Supreme Court hadn't dismissed the case, only remanded it to district court for retrial. In
preparation for that, Biddle decided to depose the three surviving crew members --
something he'd resisted earlier, believing the government's offer of them was a diversionary
tactic. On April 29, he reported the result to the three widows: "As I anticipated, they made it
quite clear that the secret equipment on board the plane had absolutely nothing to do with
the accident and had not even been put into operation."

None of that mattered. The government, having established the precedent it sought, had little
remaining interest in battling the widows. In late June, government attorneys agreed to settle
the case for a total of $170,000 -- just $55,000 less than what Kirkpatrick had originally
awarded. In exchange for signing "full and final" releases of their claim, Phyllis Brauner
received $49,855.55 (the equivalent of $349,926 today), Elizabeth Palya $48,355.55 ($339,398)
and Patricia Reynolds $39,288.90 ($275,759). For his legal work, Charles Biddle earned
$32,500 ($228,109), a contingency fee of just less than 20%.

Near the end of 1953, Biddle wrote to Phyllis Brauner: "As you know, I hated to settle the
case because I thought if we had carried it through to a finish we could have gotten
substantially more. However, something might have gone wrong and perhaps it was better to
be sure of receiving the amount which you did."

In other words: The widows got their money, and the government got its privilege.

The next round would be up to Judy Palya Loether.


There were days, growing up in her family's New Jersey home, when the attic beckoned to
Judy Palya Loether.

That's where her mother had stored every mention of Judy's late father. Elizabeth Palya had
no time for grieving or falling apart after her husband died in 1948. She remarried three years
later, and after that didn't even leave photos around the house. She didn't talk much about
Judy's father, either. Once on Veterans Day, Judy asked whether her dad was a veteran.

"In a way," her mom said.

Judy knew only that Al Palya had died in the crash of an Air Force B-29 in Waycross, Ga. She
knew there'd been a lawsuit and thought they'd won. She carried deep pride about her father,
a vision of a fabulous person. Whenever people did talk about him, they went on about his
genius, his enthusiasm, how he was a great musician, a carpenter, a photographer.

Judy's family still lived in Haddon Heights. Her stepfather, William Sacker, was a butcher.
Her mom taught home economics and carried herself with a brave grace that drew
admiration from all who knew her. They had a Dutch Colonial house on a quiet street with a
big backyard. Upstairs in the detached garage, Judy's brothers, six and ten years older, made
booby-trapped forts while she practiced birdcalls -- oy-oh-oit -- with the boy next door. In
those days, Judy didn't know what she was missing, not having her father. There was always a
daddy in the house, after all. She wasn't aware of loss.

Yet one of Judy's childhood friends sensed something. Susan White felt there was an
"elephant in the closet" at Judy's house. She believed that the elephant was Judy's father. One
afternoon, she and Judy visited the attic. Only with great reluctance did Judy point out her
father's things.

In time, the family moved to Cherry Hill, N.J. Judy's mom and stepfather now had their own
daughter. Judy became aware that this new sister, six years younger, had a different last

Later, she came to feel that in her stepdad's eyes, she and her two brothers weren't the same
as his own daughter. How hard is it, she wondered, at least to pretend you love your kids

At 20, Judy married a computer specialist and left for Illinois, then Spain, then Massachusetts.
In 1975, when she was 27, she gave birth to her first son. Loving her own child brought to
mind her father. She began to grasp what she'd been missing.

Judy bore a second son. With her boys, she spent more and more time at her mother's house.
They'd go in the summer and on vacations. During those stays, Judy often found herself
climbing up to the attic. It was a cool, comfortable place to visit. One morning, she opened a
trunk full of costumes and other neat stuff. By nature, she liked to put things in order, so she
set to work.

Soon enough, she came across newspaper articles about her father. She read them all. She also
looked through her dad's notebooks, which were full of arcane diagrams, computations and
terms. She found most of them incomprehensible. Shoran. Rheostat. Banshee. What did they
signify? It depended on how much you wanted to figure out, Judy reasoned.

She knew so little then. She didn't know the courts had awarded her mother and two other
widows compensation after government lawyers refused to turn over an accident report about
the fatal B-29 crash. She didn't know the U.S. Supreme Court had reversed those judgments
in 1953, after government lawyers declared that the accident report contained "military
secrets" so sensitive not even judges should see them. She didn't know this Supreme
Court ruling, U.S. vs. Reynolds, had formally established the government's "state secrets"
privilege -- a privilege that a growing number of legal experts had come to believe was based
on a falsehood.

Judy Palya Loether knew only that she'd lost her father when she was 7 weeks old. He was a
mystery to her. Who would she be now if she'd had him, if she'd had a daddy who loved her
and made her feel like his darling girl? Sifting through documents in her mother's attic, she
sought connection to her father. It had not yet occurred to her to ask the Supreme Court to
correct a decades-old error. She was trying only to find her own past.

On occasion, in that cool, quiet attic, she held up certain documents, the ones stamped
"secret." That's what truly fascinated her: the word secret.


Government's 'Absolute Privilege'

To this day, U.S. vs. Reynolds represents the Supreme Court's only substantive examination of
the state secrets privilege. Law professors consider Reynolds the judicial foundation of
national security law.

On paper, Reynolds offered what many consider to be a reasonable compromise between the
public's right to information and the government's need to keep secrets. How that
compromise came to be applied is what troubles a number of lawyers and legal experts. Their
objections often echo the concerns voiced half a century ago by William Kirkpatrick and
Albert Maris, the trial and appellate judges who, in finding for the three widows, declared it
"contrary to sound public policy" to let the government decide what could be kept secret.

In the end, critics maintain, Reynolds put judges in the position of ruling blindly, without
knowing the contents of requested documents. Amid such uncertainty, government lawyers
found it hard to resist invoking state secrets in all sorts of cases. To some opponents, the
impulse to protect military secrets began to look like the impulse to cover up mistakes, avoid
embarrassment and gain insulation from liability.

What was meant as a shield to protect national security, plaintiffs' lawyers started
complaining, now was being used as a sword to kill litigation. At the least, one law professor
observed, the interests of the administration in power sometimes seemed to get confused with
the interests of the nation.

The use of Reynolds started slowly but grew: The government invoked the state secrets
privilege only five times between 1953 and 1970, then 50 times between 1970 and 1994. The
current Bush administration has formally invoked it at least three times.

The scope of what constitutes a state secret has also expanded, from military technology to all
sorts of domestic intelligence operations. Even unclassified information has become subject to
national security claims. Government lawyers argue that judges can't see the whole picture,
can't tell when separate pieces of seemingly innocuous information might be gathered into a
revealing "mosaic."

Over the years, the types of information protected by the state secrets privilege have
included: alleged collusion between defense contractors; alleged malfeasance and
incompetence by contractors; alleged civil rights violations by the FBI and
CIA; the purchase, insurance and inspection records of a government mail truck involved in
an accident; and an FBI file on a sixth-grade boy who received a large amount of mail from
foreign countries because he was writing an encyclopedia of the world as a school project.

In 1975, a group of Vietnam War protesters claimed the FBI and CIA conducted intelligence
operations against them, but they had to drop the lawsuit after a district court upheld the
government's state secrets claim. In 1990, families of 37 crew members killed when Iraqi
missiles struck the frigate Stark sued contractors responsible for the ship's antimissile system,
but the United States again successfully invoked the state secrets privilege. In 2000, a similar
claim of privilege stopped a gender discrimination lawsuit filed by a CIA employee. In early
2003, yet another claim killed a suit filed by a senior engineer who'd maintained that a
defense contractor had submitted false test results on an antimissile vehicle.

Although these types of claims have multiplied, such direct invocations of the state secrets
privilege are by no means the broadest legacy of Reynolds. Far more often, Reynolds is simply
cited or referred to in courtroom arguments and legal briefs, producing what George
Washington University law professor Peter Raven-Hansen calls an "atmospheric effect." By
waving the Reynolds flag in the background, government lawyers have learned they can
often gain a degree of judicial deference, especially since the 9/11 terrorist attacks.

Such deference allowed them to confine the "enemy combatants" Yaser Esam Hamdi and Jose
Padilla for months without access to lawyers. It encouraged them to keep accused terrorist
Zacarias Moussaoui from contacting other accused terrorists. And it permitted them to hold
hundreds of detainees without charges or judicial review at the U.S. Navy base at
Guantanamo Bay, Cuba.

A handful of judges have started to question the Bush administration's claim to this type of
unilateral power, and the Supreme Court will weigh in soon. Judicial deference, though, is
still what lawyers and professors point to as the greatest consequence of Reynolds. Faced with
ominous claims about national security, judges today, as in 1953, often find it hard to deny
the government.

What the Department of Justice sought 50 years ago, it now has firmly in hand. Atty. Gen.
John Ashcroft did not reply when Sen. Charles E. Grassley (R-Iowa) and Rep. Howard L.
Berman (D-North Hollywood) wrote him in late 2002 to express concern about abuse of the
state secrets privilege. As it happens, just seven weeks earlier he had invoked it again, in a
case involving an FBI whistle-blower who'd alleged defects in the agency's translation

"To prevent disclosure of certain classified and sensitive national security information," a
Department of Justice news release advised, "Attorney General Ashcroft asserted the state
secrets privilege.... The state secrets privilege is well-established in federal law.... This
privilege has been applied many times to protect our nation's secrets from disclosure.... It is
an absolute privilege that renders information unavailable in litigation."


'I Can Tell You What Happened'

One day in 1977, in her mother's attic, Judy Palya Loether came across an old news article
about Eugene Mechler, a civilian engineer who'd survived the B-29 crash. It said he lived in
Earltown, part of Cherry Hill -- right nearby. On impulse, Judy looked him up in a phone
book and dialed a number. Mechler's daughter answered. It turned out Mechler split his time
between Maine and Florida. The daughter gave Judy an address.

Mechler wrote first, having heard of Judy's inquiry from his daughter. His handwritten words
sprawled across the page.

I was in a B-29 accident in which Al Palya was also involved. Do I have the right Palya? You
called my daughter to ask for more details on the accident. I can send you a copy of the report
I made, and if you wish I can look for the newspaper accounts.... I think you will find my
account interesting. Al was sitting in the nose gunner's position in front of the pilots. I was in
the mid-section aft of the bomb bay. So I didn't see anything of him after the plane began to
have trouble. But I can tell you what happened to the plane. Be glad to answer your

Judy wrote back, asking about the fatal flight, the mission, her father. Mechler responded, his
scrawl interspersed with assorted sketches.

I am sure the plane was not sabotaged. Quite a few B-29s had the same problem about this
time.... I knew your father only as a business associate.... Your father was a capable
administrator and engineer.... The only other thing I know is that your father had a
woodworking shop in the garage with several power tools. This was one of his hobbies. The
[Banshee project] equipment on the plane was what we were supposed to improve. It was no
more or less secret than any other experimental equipment classified as "Secret." ... Our
particular project was probably never declassified.

Judy read Mechler's letters with interest but didn't know what more to ask. It seemed to her
this well had run dry.

The years 1979 to 1994 were busy ones. She had two children to raise and a host of volunteer
activities to tend, including work at the local schools, the Cub Scouts, the county fair and a
garden association. There was her mother to help as well: In 1992, widowed a second time,
burdened by taxes, living on a small pension, Betty ran out of money and had to give up her
Cherry Hill house.

When Judy was with her aunt, Al Palya's younger sister, she would ask questions about her
dad. She never questioned her mother, though. Nor did she talk to her brothers about their
father. She couldn't say why. It was just a tender area, something they had to put aside. And
once you put it aside, you didn't know when to bring it up.

For that matter, Judy found it hard to have any intimate conversations with her mother,
whom she considered an old-fashioned Victorian in many ways. Still, Betty had always made
Judy feel loved. She'd seen her mother cry just once -- when one of Judy's brothers left to join
the Marine Corps in Vietnam. Betty had devoted her life to her children, waving her wand,
trying to make everything beautiful.

Not even a magic wand, of course, could cure everything. Life became more complex as you
grew older. The hurts piled up, the patterns started to appear, if only because you'd been
around long enough to recognize them. Books provided one form of solace to Judy. Then, in
1995, the Internet began to take form. Sitting before her new monitor one day, she typed in
her maiden name, Palya, and started tracing her family's genealogy.

She was in her mid-40s then -- older, she realized, than her father was when he died. In 1996,
she wrote a letter to his close colleague Walter Frick, who had escorted Al Palya's body home
from Waycross. Writing back, Frick reminisced about the sad trip from Georgia, calling
Judy's dad "the friendliest person I ever knew."

Time passed. One day in 1999, at her computer, Judy typed in her father's full name. That
took her to a page about Shoran, a military radar guidance system mentioned often in his
workbooks. On EBay, she found an old RCA advertisement for Shoran, and bought the ad for

More months passed. Judy kept typing in different combinations of words, seeing where they
might lead. Finally, one day in February 2000, she happened to type in "B29 + accident." In an
instant, that took her to a website titled, in bold black capital letters, "USAF & USAAF
AIRCRAFT ACCIDENT REPORTS 1918-1955." Below that was a second line: "Complete
accident reports from 1918 through 1955 now available."

At the bottom of the page, Judy found a fuller explanation: "There were thousands of aircraft
accidents in early U.S. Air Force history.... Air Force regulations denied any public access to
those records until 1996, when they were changed to allow unlimited access to all reports up
to December 31, 1955. It's because of this we're able to offer these complete investigation

Judy stared at her computer screen. Oh my God, she thought. Wow.

She hadn't known there was such a thing as an accident report. She still didn't know the
government had refused to produce it 50 years ago. All she knew was that there had been a
lawsuit and money paid to her mother. She thought her mom had won.

What interested her now wasn't why the plane crashed. As before -- as always -- she wanted
to know why her father was on the plane. She wanted to know what was so "top secret" about
his work.

She e-mailed the operator of the website, who had bought the old microfilmed reports and
started a small business selling them. In return for $63, she received 220 pages and 15
photographs. By the end of February, Judy Palya Loether held in her hands the Air Force
accident report that her mother and the patrician Philadelphia lawyer Charles Biddle had so
strenuously but vainly sought from the government half a century before.

For a moment, she hesitated to pull it from its large envelope, fearing what gruesome details
it might contain. But pull it she did.

As she began to read, she felt disappointment. There was nothing about confidential research
being done on the plane. In fact, other than a reference to removing secret equipment from
the crash site, there wasn't anything about her father's project.

Shoot, Judy thought. This doesn't have what I want.

She kept reading though, and as she did, her consternation grew. While this report didn't
describe anything secret, it seemed to involve all sorts of mistakes and negligence. It looked to
Judy as if an awful lot of bad things had happened in that plane. She understood human
mistakes, such as the pilot turning off the wrong engine. But the maintenance supervisors
-- why hadn't they complied with those technical orders? Why hadn't they installed heat
shields to fix the B-29 engines' fire hazard?


Finding an Ally and Digging Deeper
Despite its disturbing elements, something about the accident report gave Judy Palya Loether
great comfort. Her father no longer seemed so unreachable and unknowable.

She went back to the old newspaper articles and studied them. What jumped out was the
name Susan Brauner, daughter of William Brauner, a civilian engineer who'd flown that day
with Judy's father. According to the papers, Susan was 4 years old when her father died in the
B-29 crash. It occurred to Judy: There was a woman out there, a mom close to her own age,
who'd grown up with the same situation. No daddy; a daddy who had died on that plane.

Again, Judy searched on the Internet, typing in Susan's name. She came up with 20
possibilities and sent them all postcards. My name is Judy Palya Loether.... My dad was killed
in a U.S. Air Force B-29 crash in October 1948.... I'm looking for the Susan Brauner who lost
her Dad in the same plane.

Ten days later, she found a note in her mailbox from the right Susan Brauner. She lived in the
same state, Massachusetts. She had a phone number. Judy dialed it. I found an accident
report, she told Susan. There's lots of negligence.

This interested but did not overwhelm Susan Brauner. Finding Judy Palya Loether's postcard
in her mailbox had been more of a curiosity than a thunderbolt. She was 55 then, and had a
sister, Cathy, born after their father's death. They'd talked often in the Brauner home about
their lost father, so he was never a mystery. Susan's mother, Phyllis, had not remarried. She'd
earned a doctorate in analytical chemistry and had enjoyed an honored career as a professor
at Simmons College.

All the same, Phyllis Brauner had forever wrestled with limited funds and unanswered
questions. The family twice had filed Freedom of Information Act requests about the plane
crash, only to receive blacked-out documents. A void had never entirely been filled.

Judy and the Brauner family -- Susan, Cathy and Phyllis -- agreed to meet for lunch at the
Wellesley Inn, which offered a staid charm in the middle of a college town. The Brauners
arrived first. Twenty minutes late, Judy bustled in bearing two large canvas bags. She'd
suggested they bring photos of their fathers. The Brauners offered one; she offered several,
including one in a frame. She also offered presents -- homemade soaps with shells set in them.
Susan considered this thoughtful, but told herself: First let's see who you are.

From her bags Judy pulled a pile of documents, including copies of the accident report. She
talked about the report as she handed it out. The Brauners listened rather than read. Judy
started with a factual account but grew emotional as she spoke.

Although Susan did not share Judy's righteous indignation that day, she did feel it important
to hear all this, to know how her father died. So did Phyllis Brauner. At 83, she found it hard
to get around, but had been adamant about walking into this dining room, however slowly.
She grew upset listening to Judy's account of negligence. If the Brauners focused on anything,
other than being polite to Judy, it was this negligence.

The lack of national security secrets didn't draw much conversation. Judy still didn't know
there'd been a pivotal battle with the government over the state secrets privilege. Not until
this lunch did she even know there'd been a Supreme Court case. When Susan Brauner told
her, she felt stunned.

As soon as she got home, she looked up U.S. vs. Reynolds on the Internet. It wasn't easy to
read all the legalese. Still, it seemed clear to Judy that the justices were talking about an
accident report full of national security secrets.

No, Judy thought. That's not in the report. It's not there.

Now she was full of new questions. Once more she read through her pile of newspaper
articles, court documents and correspondence. She laid everything out in chronological order.
She forced herself to digest the legalese. She tracked the process as it unfolded through the
district court, the court of appeals, the Supreme Court. Clearly, the Reynolds decision was all
about national security. But she had the accident report right in front of her, and it contained
nothing related to national security.

No longer was Judy thinking about negligence. Now she was thinking: What's going on here?


At Last, an Answer

Judy Palya Loether turned back to the Internet to do more research. She also wrote once
again to the surviving engineer Eugene Mechler.

He responded. I often lie awake at night thinking about the B-29 crash.... Most if not all the
civilian passengers didn't know enough.... I didn't know where the escape hatch in the bomb
bay wall was located.... I remember thinking my wife was six months pregnant. "Poor Alice,
this is going to be tough on her!" All my life God has watched over me and this was one more
instance ...

In a second letter, Mechler repeated that thought: I realize that it was only God's looking
after me that saved me from the accident. I calculated that if it had taken me 10 more seconds
I would be dead.

Judy stared at those words. She couldn't help it, they irritated her. God saved Eugene
Mechler? Then why not her father?
Something else gnawed at her. Why did those top government officials lie? Why on earth?
There hadn't been a lot of money involved, not for the United States government. The federal
district judge had said, if you don't want to show the accident report, pay the money. The
government could have just done that. Judy didn't understand why the secretary of the Air
Force and the judge advocate general would instead lie to the Supreme Court. There was a
difference between the pilot making a mistake under stress and these guys sitting in a
conference room deciding. Often Judy had an image in her mind of that room, of those two
high officers signing false affidavits. She didn't know where a person got the wherewithal to
lie before the Supreme Court.

In the late spring of 2000, Judy decided to send an e-mail to the Philadelphia law firm that
had represented her mother 50 years before. I'm researching the circumstances of my father's
death, she wrote to Drinker Biddle & Reath. Your firm represented my mother. Do you have
any files? Do you know of any lawyers who might help me?

Charles Biddle died in 1972, but the firm still bore his name. Judy's message drew attention.
The lawyers couldn't find the relevant case files, though. They'd moved twice and thrown out
many aging documents. They found only a card showing that they indeed had handled the
case. They wrote Judy back advising her of this. Because she seemed focused on a negligence
claim, they provided the names of several aviation lawyers.

Judy and the Brauners tried vainly to interest some of them. Judy's agitation deepened. That
fall of 2000, her mother died, and then that December so did Phyllis Brauner. Soon after came
word that Eugene Mechler was gone. Those with memories were disappearing. The passage of
time pressed on Judy.

At the end of 2001, she drove with a friend to Florida, where their families spent New Year's
Eve. Studying a map, she saw their route home would take them close to Waycross. She
reexamined old news stories that mentioned the Zachry family farm. On a computer, she
found a phone number for one of the Zachrys. She called him. Bernard Zachry answered --
the boy who'd been 6 years old on the day of the plane crash. Right off, he started
recollecting. I was 6. I was on the school playground. Parts of the plane fell nearby. Mom
came to get me. We'd tied a little girl to a tree. We left her on the tree ...

Judy next called Bernard's brother Michael, who'd been 4 that day. He remembered running
crying to the house. Then she called their sister Millie, who in 1948 hadn't been born yet.
They all arranged to meet for lunch at an Applebee's in Waycross.

When Judy and her Florida friend got there, they found no fewer than 15 Zachrys waiting --
children, spouses, everyone. Bernard and Michael's father, well over 80, couldn't talk or hear
very well, but the others chatted away. Judy brought out the accident report and photos,
which intrigued them. The elder Zachry gave her an aerial photo of his farm at the time of
the crash. On it, Bernard drew where the plane's parts had landed. By the time lunch was
over, they were all nearly crying.
Then Bernard's sister, Millie, took Judy and her friend to the farm. After giving them a golf-
cart tour and providing refreshments, she escorted Judy to the spot where the B-29 had
crashed. What had been pasture half a century ago was now densely wooded.

Judy asked to be alone. She plunged into the dark forest. High branches offered a sheltering
canopy. She sat down on a tree stump and looked around. Stumps and trunks and branches.
This was the edge of the Okefenokee Swamp, a marshy, messy place. Judy would later talk
about this moment to every publication that called, including the Courier Post, the local New
Jersey paper that for years landed daily on her family's doorstep.

OK, she thought. Something big should happen. What's it going to be?

On her mind just then was how nice the Zachry family had been to her. To have a weird
person on their farm, sitting out here, her father dead more than 50 years. She had thought
maybe they wouldn't care, would just say, "It happened over there." Instead -- 15 Zachrys!
Judy felt hugely loved. She felt enveloped by love, overwhelmed by how the Zachry family
was treating her.

Then she found that she could see the sky through the trees. She began to think of her father.
It distressed her to think of him falling to earth. Better if he'd been found in the plane.

It came not as a bolt or epiphany, only a sense: Here on this stump, Judy finally felt as if she'd
found her father. He no longer was a mystery. Al Palya had become real to his daughter.
She felt connected to him. Utterly connected.

She tried to imagine his thoughts in those last moments. Who will take care of my family?
Yes. Judy just knew. He was thinking of her; he loved her. Here she was, 53 years old, and she
hadn't gotten it until now.


'We Are Intrigued With the Cause'

Back home, Judy Palya Loether decided to find Patricia Reynolds, the third B-29 widow in
U.S. vs. Reynolds. From old correspondence, Judy knew she was now Patricia Herring. Judy
sent postcards to 30 Herrings in Indianapolis. Within days, a card came back saying, "I'm
really impressed that you have been able to track me down."

Patricia Reynolds Herring was 74 then. She'd been married to her second husband, Don, for
more than 50 years and had three grown children. She'd had a richly varied career as a school
volunteer, Head Start organizer, employment agency manager, school district program
director and hospital coordinator. Late in life, she'd also become an accomplished painter of
watercolors. Hearing from Judy and reading the accident report opened the door to a long-
buried past.

What she read upset her; she hadn't known Bob Reynolds was conscious as the plane
plummeted. Still, she welcomed Judy's inquiry, for it gave her the chance to go through a
process she'd never started. She'd gone straight into denial on the day of the crash, shedding
no tears, treating the tragedy as if it hadn't happened. She'd never met, spoken to or heard
from the other two widows. Yet Bob Reynolds -- sweet, glowing Bob -- had always been a
ghost in her house.

That spring of 2002, Judy also called Susan Brauner and said, "I want to sue." Again they sent
letters to lawyers. Some didn't answer, others declined to take their case. Then the women
found a website about their mothers' old lawyer, Charles Biddle. He had been brilliant before
the Supreme Court, Judy felt, and had lost only because the government lied. What a shame
he couldn't know this. A notion seized her: His law firm should challenge U.S. vs. Reynolds.

Judy turned a second time to Drinker Biddle & Reath. At its website, she found a form. She
typed out a message, trying not to ramble, not to fume. She explained who she was. She
explained about an accident report that contained no national security secrets.

This time, Judy received an e-mail in late July from the law firm's then-head of litigation. "I
am interested in following up with you about the Reynolds case," wrote Wilson M. Brown
III. "This was well before the time of most of us, but the past of this firm means a great deal to
all of us who carry on in its name, and we are intrigued with the cause you have outlined."
Brown wanted to see the accident report. Soon after, he wanted to set up a conference call.

In November 2002, with members of all three families on the line, Wilson Brown introduced
himself and briefly talked about the firm. Judy sat on the edge of her seat, wondering what
these lawyers meant to do.

A moment later, Brown told her: "We're going to take the case."


The Supreme Court Has Its Say

Wilson Brown was too young to know Charles Biddle, but he had heard that this revered
name partner in his firm had never liked the outcome of the B-29 case. What an opportunity.

Although Brown and two associates couldn't find the law firm's original files, the Supreme
Court's records had been preserved, and that gave the lawyers a foothold. They dived into the
facts and the case law. Right off, Brown felt shocked by the role of the government attorneys
back then, particularly the solicitor general. Brown couldn't believe that this man would
stand flat-footed before the Supreme Court and say the documents contained national
security secrets. The solicitor general had only his integrity. How could he relinquish that? It
took Brown the longest time to come up with an answer: The solicitor general didn't know.
That had to be it. He hadn't been told.

How to cure this fraud? Brown could go to federal district court, but the trial court had
nothing to fix; it had ruled in the widows' favor. So had the court of appeals. It was the
Supreme Court that had overturned -- only there had the fraud worked. Brown felt he had to
get this case back before the high court.

He and his colleagues pondered and studied. When Supreme Court jurisdiction is unclear,
he'd learned at law school, you should consider the All Writs Act, which gives the court the
power to issue all recognized writs necessary to bring about a just remedy. Brown pulled
Black's Law Dictionary off a shelf in his office. He began to read treatises on unusual writs.
His eyes stopped at mention of a writ of error coram nobis.

He'd studied this rare writ in law school but needed a refresher. He read on. This writ
essentially provided a means for a court to correct an error -- an error made in proceedings
"before us."

That would be the path, Wilson Brown decided. They'd petition for a writ of error coram

Their goal wasn't to overturn the legal precedent of U.S. vs. Reynolds; they were seeking
justice for three families by challenging the facts of the case. They wanted the balance of the
original judgment, $55,000, plus compounded interest -- an estimated $1.14 million.

When the day came to send its petition to the Supreme Court, Wilson Brown's law firm
dispatched its most reliable filing clerk, Francis "Franny" Bisicchia, on a southbound train to
Washington, D.C. It was Feb. 26, 2003, a Wednesday. Franny had the required 40 copies of
the petition in booklet format in a box that she'd loaded on a handcart. In Washington, she
rode a taxi from the train station to the court, where police officers, for security reasons,
accept all large packages. They took her box and file-stamped one petition for her as proof of

The box of petitions, addressed simply to the Clerk of the Court, traveled then from the police
to the clerk's office. There it apparently reached the hands of a junior clerk,
Clayton R. Higgins Jr. The next Monday, Higgins called the law firm to say that the petition
had been rejected on its face by the clerk's office.

Wilson Brown's associate, Jeff Almeida, took the phone call. Almeida believed the clerk was
wrong to say their type of petition couldn't even be filed. Over several conversations that
Monday, he explained why, citing court rules and cases. In response, the clerk said only that
he'd consult others in his office. Two days later, Christopher Vasil, the chief deputy clerk,
called Almeida and advised him to refile the petition with a covering "motion to file."
Almeida didn't believe Supreme Court rules required this, but he conceded.

On March 4, Almeida sent the box of petitions back to the Supreme Court, once again under
the care of Franny Bisicchia. Weeks passed before the law firm learned that the clerks this
time had passed the petition to the court. There, the justices on April 4 took the step of asking
Solicitor Gen. Theodore B. Olson if his office wished to file a response.

Olson did. For a time, Wilson Brown and his clients entertained the notion that the solicitor
general might share their sense of dismay at what his office had done 50 years ago. Olson did
not, however. On May 30, he asked the Supreme Court to reject the motion to file. He did so
for a variety of reasons, among them that "the law favors finality," but his most startling
argument was that no fraud had been committed.

The government in 1950, Olson maintained, never stated that "the particular accident reports
or witness statements in this case in fact contained military or state secrets." Rather, the
Air Force secretary was "legitimately concerned" that classified information might be
embedded in the Air Force's internal memos and in the letter Frank Folsom of RCA wrote to
Gen. Hoyt Vandenberg weeks after the crash. This Olson argued even though Folsom's letter
had made only vague, passing reference to Project Banshee and hadn't been the issue back
then. In truth, the Air Force's experiments with remote-controlled aircraft had not even been
a secret: A drone plane had been featured in Washington, D.C., newspapers in January 1947,
when it flew over the nation's capital carrying members of the news media, who reported
that the "purpose of the flight is to demonstrate the effectiveness of remote control of
bombers, which will be a major aerial weapon in the future."

Olson, as others before, finally invoked the context of the times to justify his stance: "[I]n this
type of proceeding, it is easy for parties to make hindsight judgments.... The proper focus for
the courts is to seek to evaluate the claim of privilege from the standpoint of the day and
context in which it was asserted. The claim of privilege in this case was made in 1950, at a
time in the Nation's history -- during the twilight of World War II and the dawn of the Cold
War -- when the country, and especially the military, was uniquely sensitive to need for
'vigorous preparation for national defense.' ... The allegations of fraud made by the petition in
this case ... must be viewed in that light."

By the time Olson filed his response, Judy Palya Loether's quest had drawn the attention of
print and broadcast journalists. There'd been a flurry of interviews and feature articles.
Although Wilson Brown kept pointedly saying that this case is "about three families.... It is
not about national security law," many accounts found larger meaning beyond the human
interest. Parallels with current times couldn't be ignored: the heightened concerns about
national security, the Bush administration's desire for expanded powers to fight perceived
threats, Atty. Gen. Ashcroft's refusal to produce documents or witnesses in sensitive cases
involving accused terrorists.
One news report declared the new Reynolds claim "a case to shake the foundation of national
security." Another thought "it could serve as an important lesson about the potential
consequences of expanding the government's homeland security powers." In Massachusetts,
Judy suggested to one reporter that "this story is all about America. It isn't about a plane
crash. It's about my country doing the wrong thing."

She and Susan Brauner talked often now of "rectifying an injustice" and "getting the word
out." They also, tentatively, exchanged messages about how the families should divide
whatever money the courts might award them. Judy marveled at what they had set in

"What is very rewarding," she said one day last June, "are all the people who are involved in
this. People are joining me on this journey. I have found my father. Patricia has found the
opportunity to face this finally. Then there's Charles Biddle's law firm. How right can that

Other voices, however -- less enthusiastic voices -- also could be heard around Washington in
the early summer of 2003.

At the George Washington University Law School, Jonathan Siegel told the National Law
Journal, "I would have to guess this lawsuit isn't going to work. It's a basic principle of law
that once a case gets decided and the decision is final, that's it."

At the Center for National Security Studies, Kate Martin literally sputtered at the import
being given to fraudulent government claims: "That facts of the original case are not true is
irrelevant to the state secrets privilege. The idea that it undercuts the privilege is ridiculous.
Often in cases, after they're decided, the facts are proven to be not true. That's the nature of
the legal system. Sometimes people lie. Sometimes there's new information."

George Washington University law professor Jonathan Turley -- whose own office had been
sealed by a federal court concerned that it might contain state secrets related to a sensitive
case -- said: "For the Supreme Court to address the fact clearly that it had been lied to would
open difficult issues. It would be like Claude Rains saying, 'I'm shocked, I'm shocked.' The
court used the facts of Reynolds to say the government could be trusted.... Reynolds was
based on trust, on willful blinders. There's much danger in going back now, in recognizing
that the government routinely lies. For that reason, they won't reopen this. I think Reynolds
is like discovering an unfaithful wife after 50 years of marriage. You're hurt by the betrayal,
but you can't turn back half a century. You preserve the marriage for the children's sake."

Turley spoke those words in Washington on Friday, June 20. The Supreme Court term ended
the following week, and it proved to be an extraordinary five days. Banner headlines
proclaimed two seminal court decisions: one to preserve affirmative action in university
admissions, the other to recognize the due process rights of gay men and lesbians. Amid the
cascade of stories, columns and editorials, few noticed another action by the justices.
On Monday of that week, the Supreme Court delivered a simple one-sentence ruling in the
case titled In Re Patricia J. Herring, Et Al: "The motion for leave to file a petition for a writ of
error coram nobis is denied."


Friends for the Journey

By the end of summer, an impulse to party had supplanted feelings of disappointment among
those who'd thought to challenge U.S. vs. Reynolds. Invitations began to arrive in dozens of
mailboxes. "The Court Has Decided ..." they read. "You Have Been Ordered To Appear at a
Clam Bake on Cape Cod." Besides a traditional shore dinner, the "docket" promised "Dart
Throwing at Justices." All nine targets were depicted right there on the invitation, in eerily
convincing sketches drawn by Patricia Reynolds Herring. Eight justices were dancing; one,
Sandra Day O'Connor, was perched on a swing -- "a vote swing," the caption explained.

Everyone came to Susan Brauner's home in Harwich Port, Mass. It was the first time they had
all gathered as a group. Pat Reynolds Herring and her husband, Don, flew from Indianapolis.
Judy Palya Loether and her husband, John, drove from western Massachusetts. So did Cathy
Brauner and her daughter, Hyacinth. Susan Brauner's daughter and son-in-law showed up,
and her grandchildren, and family friends who'd known Phyllis Brauner. From Philadelphia
came the Drinker Bi le & Reath lead attorney Wilson Brown, with his wife, Anne.

They all stood together in Susan Brauner's backyard, minutes from Nantucket Sound,
sampling Cape Cod wine, Nantucket ale and homemade clam chowder. Then came lobster
rolls, steamers, corn on the cob, potato salad, fruit salad and a table full of desserts. Children
darted around and scooted off to the beach. Jokes flowed easily about government officials
and high court justices. The partygoers dropped their dart-throwing idea, but only because
they expected a congressman to show up.

Their fight wasn't over. They were lobbying Congress for a remedy, and within weeks would
file an action seeking relief in federal district court. However those efforts turned out (a judge
in Philadelphia will hear arguments on May 11), they'd already realized a type of success:
Lawyers challenging other state secrets claims had started to study and use their petition.
When the government invoked Reynolds, these lawyers could now introduce the story of
Reynolds' genesis.

All the same, an elegiac tone colored the day's celebration.

Pat Reynolds Herring felt that whatever happened "wouldn't be the same as the Supreme
Court admitting fault." Susan Brauner allowed that the court's wordless denial had "stung,"
had been a kind of revelation." Judy Palya Loether confessed that she'd expected the
Department of Justice to be "appalled" at what transpired 50 years ago. She'd had a fantasy,
even, that President Bush would call her to say this was wrong, we'll make it right, we're
very sorry.

"It didn't happen that way," Judy said, as the clambake wound down. "Maybe the law isn't
about right or wrong. The concept that the government lied to the Supreme Court seemed to
me a terrible thing to do. It appears that the justices were not as appalled as I was."

That thought did not devastate her, though. Instead, she found comfort in what she still,
repeatedly, called her "journey" -- and in all those who'd joined her along the way. At
nightfall, from a corner, she watched them gather in the dimly lit family room of Susan
Brauner's home, four generations together, many of them laboring over a mammoth jigsaw
puzzle -- an image of the globe -- brought as a present by Pat Reynolds Herring.

Their fathers and husbands, Judy believed, would be happy to know they were all together.
At the clambake that afternoon, she'd risen to say, "I hope we have another chance to gather,
to celebrate victory." Now she thought: I would put a higher value on this experience than on
winning the Supreme Court decision.

She weighed that notion, then said it out loud: "Yes. If I had to trade my experiences for a
Supreme Court ruling, I wouldn't. The government is a cold entity. These are real people."


About This Story

This story is drawn from court records and government reports, as well as interviews over
eight months with lawyers, law professors and all central characters. They include Judy Palya
Loether, Susan Brauner, Cathy Brauner, Patricia Reynolds Herring, Bernard Zachry, Michael
Zachry, Robert Zachry, Wilson M. Brown III, Jeff Almeida and Charles Biddle's son, James
Biddle. Thoughts and emotions attributed to the characters come directly from them.

Descriptions of the crash site and the Zachry farm derive from a visit to Waycross, Ga., and a
tour of the farm. Descriptions of Charles Biddle and his ancestral home are drawn from a visit
to Andalusia and a tour of the estate provided by James Biddle, who shared family scrapbooks,
histories, tapes and his father's memoir, "The Way of the Eagle."

The context and impact of U.S. vs. Reynolds are based on law review articles, case files, legal
textbooks and interviews with attorneys and professors specializing in national security law,
including Jonathan Turley, Kate Martin, Mark Zaid and Peter Raven-Hansen.

Passages that narrate the B-29 crash derive from declassified Air Force documents, including
the official accident report ("Report of Special Investigation of Aircraft Accident
Involving TB-29-100BW No. 45-21866"); supplementary memos and summaries; statements
and sworn testimony by crash survivors Herbert W. Moore Jr. (copilot), Earl W. Murrhee
(flight engineer), Walter J. Peny (left scanner) and Eugene Mechler (civilian engineer);
statements by witnesses near Waycross, maintenance foremen, investigators and the B-29's
previous flight crew; the crew roster; maintenance reports; weather reports; and diagrams,
maps and photos of the crash site. The narration also derives from historical articles about the
B-29; newspaper articles published the week of the crash; Eugene Mechler's letters to Judy
Palya Loether; Susan Brauner's memories; and interviews with Zachry family members.

Passages that chronicle the legal case resulting in U.S. vs. Reynolds are based on the original
case file, including the complaint, responses, interrogatories and briefs; the transcript of
record stored at the U.S. Supreme Court; the transcript of proceedings before Judge William
H. Kirkpatrick on Aug. 9, 1950; the sworn affidavits signed by the secretary of the Air Force
and the judge advocate general; the transcript of the trial for damages before Kirkpatrick on
Nov. 27, 1950; the Court of Appeals decision by Judge Albert Maris in December 1951; the
government's petition for a writ of certiorari; the briefs filed to the Supreme Court; the
Supreme Court decision by Chief Justice Fred Vinson in March 1953; the petition for a
writ of error coram nobis filed by Drinker Biddle & Reath in February 2003; the response of
the United States filed by the solicitor general in May 2003; and correspondence between
Charles Biddle and the three widows.

Descriptions of Project Banshee are drawn from correspondence between Albert Palya and
his colleagues; declassified Air Force documents; and a history of Eglin Air Force Base. The
portrayal of RCA executive Frank Folsom is based on declassified Air Force documents and
Folsom's original letter to Gen. Hoyt Vandenberg.

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