[1] Three employees of the Radio Corporation of America, an Air Force contractor, were killed when a B-29 Superfortress crashed in 1948 in Waycross, Georgia.

As part of this action, they requested production of accident reports concerning the crash, but were told by the Air Force that the release of such details would threaten national security.

[9] A military aircraft on a flight to test secret electronic equipment crashed, and certain civilian observers aboard were killed.

The Judge Advocate General filed an affidavit stating that the material could not be furnished "without seriously hampering national security," but he offered to produce the surviving crew members for examination by the plaintiffs and to permit them to testify as to all matters except those of a "classified nature."

In the absence of the documents which the Air Force failed to produce, the trial court directed a summary judgment for the plaintiffs against the Government.

We hold that there was, and that, therefore, the judgment below subjected the United States to liability on terms to which Congress did not consent by the Tort Claims Act."

In 2005, the Court of Appeals for the Third Circuit upheld the decision in the new litigation, in which District Court determined "there was no fraud because the documents, read in their historical context, could have revealed secret information about the equipment being tested on the plane and, on a broader reading, the claim of privilege referred to both the mission and the workings of the B-29".

Even without the broad reading that the claim included secrecy concerning the aircraft itself, the court found it possible that the documents' revelations "that the mission required an 'aircraft capable of dropping bombs' and that the mission required an airplane capable of 'operating at altitudes of 20,000 feet and above'" could have been "seemingly insignificant pieces of information [that] would have been of keen interest to a Soviet spy fifty years ago.

On the other, there is always suspicion that "classified documents" are merely a way to cover-up government malfeasance or bad faith actions of the executive branch.

[15] As it is generally used, the term applies to any circumstance used to justify or excuse a prima facie tort, such as an assault, battery or trespass.

Or, the privilege may be regarded as absolute in the sense that the court will not permit an inquiry into motive or purpose, since this could result in subjecting the honest person to harassing litigation and claims.

The privilege is firmly rooted in the constitutional authorities and obligations assigned to the President under Article II to protect the national security of the United States.

Accountability is preserved by a number of procedural and substantive requirements that must be satisfied before a court may accept an assertion of the state secrets privilege.

The Supreme Court in Reynolds held that such information should be protected from disclosure when there is a "danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged."

The Fifth Circuit has noted, "the greater public good – ultimately the less harsh remedy" is to protect the information from disclosure, even where the result might be dismissal of the lawsuit.

As the Supreme Court has stated, "[t]the authority to protect such information falls upon the President as the head of the Executive Branch and as Commander in Chief.

"[22] In the case of Herring v. United States, where it was disclosed that the declassified accident report from Reynolds was reviewed, Judge Davis found, "[d]etails of flight mechanics, B-29 glitches, and technical remedies in the hands of the wrong party could surely compromise national security," and thus "may have been of great moment to sophisticated intelligent analysts and Soviet engineers alike.

Still, the Executive Branch is given the utmost deference, and the courts cannot get into the business of second-guessing national security and foreign policy questions.

The time is now ripe for such legislation in the civil arena; litigants and their counsel are confused and unsure as to how to proceed in cases where the government raises the privilege; the courts themselves are confronted with precedent going in many different directions as to the scope of their authority and the requirements exercising it.

It is my opinion that the Freedom of Information Act should allow a judge to review the material and make a determination whether the assertion of privilege is warranted.

I would prefer to add a second sentence to the definition: "The assertion of a state secret by the executive branch is to be tested by independent judicial review."