[Marxism] Military secrets, fraud, fraud on the courts, & fraud of the courts

[Brian Shannon <Brian_Shannon@xxxxxxxxxxx>]

There is a connection between this case and the Iraq War. It involves 
so-called “military secrets” and the attempt to pierce behind the 
government’s claim that certain witnesses and documents can’t be 
revealed because they involve “military secrets” or “military 
intelligence.”

Another area of interest is that it confirms the notion that the “law” 
is simply what the court wants to say is the law. The most “activist” 
judges today are those who use the law to stifle citizens rights. As 
the judge in his ruling says: [actions for fraud on the court are] “so 
rare that this court has not previously had the occasion to articulate 
a legal definition of the concept.”

In this case, there was no statute of limitations, no rule that cut off 
the plaintiff. And there was a clear case of lying by the government.

In the original action 50 years ago, the U.S. government said that they 
had to keep the reports of the plane’s accident sealed due to “Military 
Secrets.”

Well, there were no secrets. Those who said that there were military 
secrets were the government attorneys and they based it on assertions 
by the U.S. Air Force. The court held that since the government 
attorneys who claimed that there were secrets did not know the truth, 
but might have reasonably believed that there were military secrets 
involved or at least that it might have revealed to foreign governments 
“ongoing developments in Air Force technical engineering.”

Therefore it couldn’t be shown that their deception was intentional. 
Thus there was “no fraud on the courts.”

Of course, what that does is simply destroy the concept entirely. For 
if all you have to do is look into the dark hearts of government 
attorneys and discern what they thought, you have erased the legal 
concept entirely. And if the military secret may only be, let us say, 
the success of method of tortures used by the 82nd Airborne under the 
direction of the C.I.A.

All the government has to claim is that revealing the information would 
reveal “ongoing developments” in the general subject field. And all the 
government lawyer has to do is pass it on. To get by the barrier this 
court sets, you would have to prove that the lawyer “knew” that his 
government informants were lying and that the general subject matter 
was obviously not of interest to others. This would be impossible to 
prove, quite aside from questions such as attorney-client privilege 
etc.

In the Iraq war, this would justify the national security interests in 
“military secrets” to “ongoing developments” in a particular area, such 
as interrogation of enemy combatants.

And to sue the government under the concept of “fraud on the court”, 
the rule created is: “there must be: (1) an intentional fraud; (2) by 
an officer of the court; (3) which is directed at the court itself; and 
(4) in fact deceives the court,”

There may be an even more serious issue brought out in Shannon Duffy's 
note. Since I am not a lawyer and have no access to the law in this 
area, perhaps someone else may comment. In the original case: “[T]he 
Supreme Court reversed and sent the case back to Kirkpatrick, ordering 
that he reconsider whether the government’s claim of privilege should 
be granted. The justices held that the government could withhold the 
records -- even from a federal judge -- if national security was at 
stake.”

In other words, even the original award might not have been granted had 
the judge ruled that in fact ”national security was at stake.” The 
Catch 22 character of this seems to have been overlooked. How could a 
federal judge ”reconsider" the ”claim of privilege” dependent on 
”national security” being at stake, if s/he couldn't look at the 
records?

Brian Shannon
________________________

No ‘Fraud on the Courts’ in 50-Year-Old Case

Shannon P. Duffy, The Legal Intelligencer, 09-26-2005

A federal appeals court has rejected an appeal by a team of lawyers 
from Drinker Biddle & Reath who argued that recently declassified 
documents proved that military officials “lied” to the courts to hide 
documents in a 1949 lawsuit brought by three widows of civilian 
engineers who died in the crash of a B-29 bomber.

The decision in Herring v. United States announces an extremely 
difficult test for proving a “fraud upon the court.”

Writing for a unanimous three-judge panel, Senior 3rd Circuit Judge 
Ruggero J. Aldisert . . . concluded that “the presumption against the 
reopening of a case that has gone through the appellate process all the 
way to the United States Supreme Court and reached final judgment must 
be not just a high hurdle to climb but a steep cliff-face to scale.”

In the original suit, the widows suing under the Federal Tort Claims 
Act were represented by attorney Charles J. Biddle seeking compensation 
for the deaths of their husbands in an October 1948 crash of a B-29 
bomber in Waycross, Ga.
. . .
But when Biddle demanded access to an Air Force report on the accident, 
the government refused to turn it over, arguing that the “military 
secrets” in the report were so sensitive that they could not even allow 
U.S. District Judge William Huntington Kirkpatrick to review it in 
camera.

Kirkpatrick (who died in 1970) decided that since the government was 
refusing to turn over the report, the widows were entitled to judgment 
on liability. He then awarded them $225,000.

The 3rd U.S. Circuit Court of Appeals upheld that ruling.

But the Supreme Court reversed and sent the case back to Kirkpatrick, 
ordering that he reconsider whether the government’s claim of privilege 
should be granted. The justices held that the government could withhold 
the records -- even from a federal judge -- if national security was at 
stake.

Before Kirkpatrick ruled, however, the widows settled their claims for 
75 percent of the original verdict, or $170,000.

Nearly 50 years later, Judith Palya Loether, a daughter of one of the 
widows, obtained the declassified report and said she was astonished to 
find that it contained nothing approaching a military secret.
. . .
[Her] suit alleged that the declassified report showed that it 
contained no military secrets, and instead was “no more than an account 
of a flight that, due to the Air Force’s negligence, went tragically 
awry.”

As a result, the suit alleged, “in telling three federal courts 
otherwise by way of sworn affidavits, the Air Force lied.”

[Based on compounding interest in the difference between the settlement 
and the award,] The 2003 suit demanded more than $1.1 million in 
damages.
. . .
But U.S. District Judge Legrome D. Davis dismissed the suit, finding 
that the plaintiffs had failed to prove a fraud on the courts.

“Though the plaintiffs argue that the Air Force deliberately hid its 
obvious negligence behind fraudulent affidavits, disclosure of this now 
seemingly innocuous report would reveal far more than the negligence 
plaintiffs read,” Davis wrote.

“It may have been of great moment to sophisticated intelligence 
analysts and Soviet engineers alike. … Viewed against this political 
and technical backdrop, it seems that the accident investigation report 
may have reasonably contained sufficient intelligence, if not about the 
secret equipment or mission, then about ongoing developments in Air 
Force technical engineering, to warrant an assertion of the military 
secrets privilege,” Davis wrote.

Now the 3rd Circuit has upheld Davis’ rulings and announced an 
extremely strict test for proving a claim of fraud on the court.

Aldisert found that actions for fraud upon the court “are so rare that 
this court has not previously had the occasion to articulate a legal 
definition of the concept.”

The bar, Aldisert found, must be set very high.

“In order to meet the necessarily demanding standard for proof of fraud 
upon the court we conclude that there must be: (1) an intentional 
fraud; (2) by an officer of the court; (3) which is directed at the 
court itself; and (4) in fact deceives the court,” Aldisert wrote in an 
opinion joined by Circuit Judges Samuel A. Alito Jr. and Franklin S. 
Van Antwerpen.

Aldisert found that the key claim in the suit was that the “purportedly 
top secret” documents for which the government claimed a military 
secrets privilege “did not actually reveal anything of a sensitive 
nature.”

In pressing a claim of fraud on the courts, Aldisert said, the 
plaintiffs were alleging that Air Force officers “fraudulently 
misrepresented the nature of the report in a way that caused the widows 
to settle their case for less than its full value.”

Aldisert found that the court’s task was to decide whether the Air 
Force’s assertion of military secrets privilege over the accident 
report was premised on a fraud.

“In order to do this we look carefully at two documents central to the 
original litigation: the formal affidavit and claim of privilege filed 
by then-Secretary of the Air Force, Thomas K. Finletter and an 
affidavit of then-Judge Advocate General of the Air Force, Reginald 
Harmon.”

Aldisert found that since both of the affidavits were made by lawyers, 
they satisfied at least one prong of the test.

But Aldisert concluded that the plaintiffs failed in arguing that the 
affidavits amounted to perjury.

Although the plaintiffs insisted that the accident report includes no 
military secrets, Aldisert found that the two affidavits “can be 
reasonably read to assert privilege over technical information about 
the B-29.”

As a result, Aldisert concluded that the plaintiffs fraud on the court 
claim “falls apart.” “Because there is an obviously reasonable truthful 
interpretation of the statements made by the Air Force, appellants are 
unable to make out a claim for the perjury which … forms the basis for 
their fraud upon the court claim,” Aldisert wrote.
. . .

http://www.law.com/jsp/article.jsp?id=1127379917683


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