A test flight for the Air Force’s Project Banshee, located at Robins Air Force Base in Georgia, is set for 8:30 a.m. Banshee is an attempt begun in 1946 to develop and deploy a long-range missile ahead of both the Soviet Union and rival US military branches. The airplane used in the test flight crashes less than an hour into its flight, killing 9 of the 13 aboard. Maintenance Problems – The plane assigned for the flight is a B-29 Stratofortress, a bomber made famous by its delivery of the atomic bombs to Hiroshima and Nagasaki at the end of World War II. B-29s are notoriously difficult to fly and maintain: their four wing-mounted engines almost routinely overheat and catch fire, causing engine shutdowns, sudden drops in altitude, and, often, crashes. The engines’ eighteen cylinders lack sufficient airflow to keep them cool, and the overheating often causes the crankcases, made of light but highly flammable magnesium, to burst into flames. Like so many of its brethren, the plane has suffered its share of maintenance issues, and is flying without numerous recommended maintenance and repair tasks being performed. Just five days before, it had been designated “red cross”—grounded and unfit for service. It was allowed to fly through an “exceptional release” signed by the squadron commander. Crew Difficulties – The flight is moved back to the afternoon after some crew members fail to show up on time, and to allow last-minute repairs to be made. By takeoff, the flight crew is assembled: Captain Ralph Erwin; co-pilot Herbert W. Moore; flight engineer Earl Murrhee; First Lieutenant Lawrence Pence, Jr, the navigator; Sergeant Walter Peny, the left scanner; Sergeant Jack York, the right scanner; Sergeant Melvin Walker, the radio operator; and Sergeant Derwood Irvin, manning the bombsight and autopilot. The crew is joined by civilian engineers assigned to Banshee: Al Palya and Robert Reynolds from RCA, William Brauner and Eugene Mechler from the Franklin Institute, and Richard Cox from the Air Force’s Air Materiel Command. In violation of standard procedure, none of the crew or the civilians are briefed on emergency procedures, though Murrhee will later say that the crew were all familiar with the procedures; he is not so sure about the civilians, though he knows Palya and Reynolds have flown numerous test flights before. In another violation of Air Force regulations, none of the flight crew have worked together before. As author Barry Siegel will note in 2008, “The pilot, copilot, and engineer had never shared the same cockpit before.” Engine Fire and Crash – Less than an hour into the flight, one engine catches fire and two others lose power, due to a combination of maintenance failures and pilot errors. The civilians have some difficulty getting into their parachutes as Erwin and Moore attempt to regain control of the aircraft. Four of the crew and civilians manage to parachute from the plane, but most remain on board as the airplane spirals into the ground on the edge of the Okefenokee Swamp, near Waycross, Georgia. Crew members Moore, Murrhee, and Peny survive, as does a single civilian, Mechler. Four others either jump at too low an altitude or die when their chutes foul the airplane; the other five never manage to leave the plane and die on impact. Widows File Suit – Several of the civilians’ widows will file suit against the US Air Force, asserting that their husbands died because of Air Force negligence (see June 21, 1949). Their lawsuit will eventually become US v. Reynolds, a landmark Supreme Court case and the underpinning for the government’s claims of state secrets privilege (see March 9, 1953). [Siegel, 2008, pp. 3, 14-17, 33-49]
Initial Associated Press reports of a crash in Georgia of a B-29 that had been on a test flight for the Air Force’s secret Project Banshee (see October 6, 1948) acknowledge that “the plane had been on a mission testing secret electronic equipment which RCA developed and built under an Air Force contract… Full details of the plane’s mission were not disclosed.… The Air Force would say only that the bomber was engaged in ‘electronic research on different types of radar…’” Local papers have a bit more detail, with survivor accounts hinting at confusion and some contradictions between their versions of events and that being given out by official Air Force spokesmen. Later reports from the Air Force will downplay the B-29’s involvement in Project Banshee. [Siegel, 2008, pp. 56-58]
The Army Air Force’s Air Materiel Command receives the initial report on an investigation of a B-29 crash in Georgia (see October 6, 1948). Perceptions of the crash are colored by the fact that the bomber was carrying equipment from Project Banshee, a secret Air Force missile development initiative. The initial report is meticulously factual, providing an almost minute-by-minute account of the events preceding the crash as told by the four survivors and intensive examination of the debris. The report concludes that it would benefit future B-29 pilots to have more training on flying the plane when it has lost both engines on one wing, and a general recommendation that the pilot and crew should give civilian passengers better instruction in emergency procedures. Though the report is circumspect in the extreme in finding fault with the pilot and military personnel for the crash, and gives only vague and generalized recommendations to help prevent future crashes, the Air Force will heatedly deny that the pilots or crew could have been in any way responsible for the crash. In 2008, reporter Barry Siegel will write, “Years later, this particular claim, in fact Air Materiel Command’s entire position, would cause various veteran aviators to hoot.” Pilot error causing the crash is obvious, they will conclude. [Siegel, 2008, pp. 62-65]
Frank Folsom, the executive vice president of the Radio Corporation of America’s RCA Victor Division, writes a letter to General Hoyt Vandenberg, the commander of the US Air Force. Folsom is inquiring about the deaths of two RCA employees in a recent B-29 crash in Georgia (see October 6, 1948). The plane had been on a secret test mission for the Air Force’s Project Banshee, a missile development project in which RCA is heavily involved. Folsom believes that the Air Force is downplaying the likelihood that pilot error caused the crash (see October 18, 1948), and tells Vandenberg that “certain steps will [need to be taken] if we are to participate in the future in Air Force flight test programs.” Folsom wants more pay and compensation for RCA employees participating in Air Force test programs, as well as newer and safer airplanes to be used in the test flights and a higher caliber of test pilots and crew members. Perhaps the portion of the letter that causes the most consternation among Air Force officials is Folsom’s request to read over the official accident reports. “When a crash has occurred, a copy of the official report… must be made available promptly to us,” he writes. “Needless to say, the report will not be disclosed except to those who are directly concerned.” Folsom’s letter will spark a new round of Air Force investigations into the crash, in hopes of mollifying Folsom. However, the report from this investigation will be classified at the highest level of security and not provided to RCA. Additionally, though the second investigation will find a strong likelihood of pilot error causing the crash, the Air Force will not admit any such findings to RCA. [Siegel, 2008, pp. 65-80] These accident reports will play a key role in the lawsuit filed against the US government by three widows of killed crew members (see June 21, 1949 and August 7-8, 1950).
Phyllis Brauner and Elizabeth Palya, who both lost their husbands in the “Project Banshee” B-29 crash (see October 6, 1948), file a civil action lawsuit against the US government in regards to the crash. The lawsuit claims that the US Air Force, in the person of the pilot and military crew members of the B-29, caused the deaths of their civilian husbands by “the negligence and wrongful acts and omissions of the officers and employees” of the US. The widows’ lawyer, Charles Biddle, asks the government for $300,000 per family. A third widow, Patricia Reynolds, will join the lawsuit in September 1949. One of the biggest issues surrounding the case is the lawsuit’s request that Biddle and his lawyers be given access to the official accident reports, which the government will claim cannot be revealed because they may contain classified information (see October 18, 1948 and August 7-8, 1950). Biddle’s promise that no one else will see the reports makes no impression on the government’s lawyers. [Siegel, 2008, pp. 100-101]
A federal judge orders the Air Force to turn over copies of its classified accident reports about a B-29 crash (see October 6, 1948) as part of a lawsuit filed by three of the widows of crew members killed in the crash (see June 21, 1949). Claiming that the reports may contain classified information about a secret missile development project, Project Banshee, the Air Force not only refuses to turn over the accident reports to the widows’ lawyer, it refuses to allow even the attorney general to view the documents (see August 7-8, 1950). The lawyer for the widows, Charles Biddle, will continue to press for the release of the accident reports. [Siegel, 2008, pp. 120-123]
The Air Force refuses to meet the court-imposed deadline to turn over accident reports of a 1948 B-29 crash in Georgia (see October 6, 1948) to the plaintiffs in a lawsuit against the government (see July 26, 1950). Instead, the Justice Department argues before the court that because the accident reports might contain “state secrets” that might imperil “national security” if made available to anyone outside the Air Force, the reports cannot be made available. “[T]he aircraft in question, together with the personnel on board, were engaged in a highly secret mission of the Air Force,” the government lawyers argue. “The airplane likewise carried confidential equipment on board and any disclosure of its mission or information concerning its operation or performance would be prejudicial to this department and would not be in the public interest.” Such a claim—that the production of the reports would “seriously hamper national security”—renders the reports “beyond judicial authority,” the Justice Department lawyers claim. [Siegel, 2008, pp. 124-126]
Weeks after the Justice Department refused to make accident reports of a 1948 B-29 crash (see October 6, 1948) available to the plaintiffs in an ongoing wrongful death lawsuit against the government (see July 26, 1950) because the reports are so highly classified that their disclosure might “seriously hamper national security” (see July 26, 1950 and August 7-8, 1950), the Air Force, in a routine review, drastically lowers the classification of the accident reports from top-level “Secret” to third-level “Restricted.” Whereas “Secret” documents supposedly contain information that “might endanger national security” if revealed, “Restricted” documents are “for official use only” and should not be disclosed “for reasons of administrative privacy.” The Air Force apparently no longer considers the documents a threat to national security. However, neither the plaintiffs’ lawyers, the judge hearing the lawsuit, or even the Justice Department lawyers are aware of the reports’ reduction in status. They continue to argue the merits of releasing the reports as if they are still highly classified. [Siegel, 2008, pp. 133]
Federal judge William H. Kirkpatrick rules that the US government must turn over the disputed, and supposedly highly classified (see September 14, 1950), accident reports from a 1948 B-29 crash (see October 6, 1948)—not to the plaintiffs in the lawsuit over the crash (see July 26, 1950), but to Kirkpatrick himself. He wishes to review the reports to determine if they contain any information that might threaten national security, and, before turning the documents over to the plaintiffs’ lawyers, will personally remove that information. In mid-October, when the government again refuses to turn over the documents, Kirkpatrick will find in favor of the plaintiffs (see October 12, 1950). [Siegel, 2008, pp. 133-134]
Federal judge William H. Kirkpatrick rules in favor of the plaintiffs in a wrongful death lawsuit against the US government (see October 6, 1948, June 21, 1949, and July 26, 1950), after the government refuses to turn over classified accident reports that have a direct bearing on the plaintiffs’ case (see September 21, 1950). Judge Kirkpatrick orders the government to pay the plaintiffs, three widows who lost their husbands in a 1948 plane crash, a total of $225,000. The plaintiffs’ lawyer, Charles Biddle, expects the government to balk at paying out the money, and to instead continue to challenge the court’s attempt to compel it to turn over the accident reports (see October 19, 1951). [Siegel, 2008, pp. 134-139]
The government, represented by a team of Justice Department lawyers, appeals the recent ruling against it in the ‘Banshee’ B-29 plane crash lawsuit (see June 21, 1949). In the Third US Circuit Appeals Court, the government argues that the lower court had no business demanding that the Air Force turn over classified accident reports about the crash, because the reports may contain information that would potentially compromise national security (see October 12-18, 1948 and September 14, 1950). The government had twice defied court orders to produce the documents, and as a result had lost the lawsuit (see October 12, 1950). The Justice Department’s arguments come down to the assertion that the judiciary has no constitutional right to compel the executive branch to turn over documents it considers privileged. In 2008, author Barry Siegel will write, “For the first time in the B-29 litigation, the government directly argued that the judiciary could not review [the government’s] claim of privilege.” The lawyer for the plaintiffs, Charles Biddle, counters that the executive branch has no such sweeping claim of privilege, and that a judge should be allowed to review documents in dispute to determine both their bearing on a case and the possibility that releasing those documents could jeopardize national security (see September 21, 1950). Three weeks later, the appeals court will rule unanimously against the government (see December 11, 1951). [Siegel, 2008, pp. 149-153]
A three-judge federal appeals court unanimously rejects the government’s claim of unfettered executive privilege and secrecy in regards to classified documents (see October 19, 1951). In an opinion written by Judge Albert Maris, the court finds that the government’s claim that the judiciary can never compel the executive branch to turn over classified documents to be without legal merit. The plaintiffs in the case, three widows who lost their husbands in the crash of a B-29 bomber carrying classified materials (see June 21, 1949), had a compelling need for the documents in question, the downed B-29 accident reports, to further their case, Maris writes (see October 12, 1950). No Legal Basis for Claim of Privilege – Maris goes further than the parameters of the single lawsuit, writing: “[W]e regard the recognition of such a sweeping privilege… as contrary to a sound public policy. The present cases themselves indicate the breadth of the claim of immunity from disclosure which one government department head has already made. It is but a small step to assert a privilege against any disclosure of records merely because they might prove embarrassing to government officials. Indeed, it requires no great flight of imagination to realize that if the government’s contentions in these cases were affirmed, 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.… We need to recall in this connection the words of [Revolution-era jurist] Edward Livingston: ‘No nation ever yet found any inconvenience from too close an inspection into the conduct of its officers, but many have been brought to ruin, and reduced to slavery, by suffering gradual imposition and abuses, which were imperceptible, only because the means of publicity had not been secured.’” He also quotes Revolutionary War figure Patrick Henry, who said, “[T]o cover with the veil of secrecy the common routine of business is an abomination in the eyes of every intelligent man and every friend to his country.” Rejecting Claim of ‘State Secrets’ – Maris is even less respectful of the government’s claim of a “state secrets” privilege. He notes that the government did not make that claim until well into the lawsuit proceedings (see October 19, 1951), indicating that it was a “fallback” argument used after the original government arguments had failed. Maris is also troubled, as author Barry Siegel later writes, in the government’s “assertion of unilateral executive power, free from judicial review, to decide what qualified as secret.” The lower court judge’s ruling that he alone should be given the documents for review adequately protected the government’s security interests, Maris writes: “[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 of this question must be accepted by the district court without any independent consideration.… We cannot accede to this proposition. On the contrary, we are satisfied that a claim of privilege against disclosing evidence… involves a justiciable question, traditionally within the competence of the courts.… To hold that the head of an executive department of the government in a [law]suit to which the United States is a party may conclusively determine the government’s claim of privilege is to abdicate the judicial function to infringe the independent province of the judiciary as laid down by the Constitution.” Fundamental Principle of Checks and Balances – Maris continues: “The government of the United States is one of checks and balances. One of the principal checks is furnished by the independent judiciary which the Constitution established. Neither the executive nor the legislative branch of the government may constitutionally encroach upon the field which the Constitution has reserved for the judiciary.… Nor is there any danger to the public interest in submitting the question of privilege to the decision of the courts. The judges of the United States are public officers whose responsibilities under the Constitution is just as great as that of the heads of the executive departments.” Government Appeal – The Justice Department will appeal the ruling to the US Supreme Court (see March 1952 and March 9, 1953). [Siegel, 2008, pp. 153-156]
The Justice Department appeals the ruling of the US Appeals Court in the B-29 “Banshee” case (see December 11, 1951). The appellate judges found that the executive branch of government could not unilaterally refuse to hand over classified documents requested during the course of a trial, and justify its decision merely by its own say-so (see October 12, 1950). Solicitor General Philip Perlman argues that the appellate ruling erroneously interprets the law “so as to permit encroachments by the judiciary on an area committed by the Constitution to executive discretion.” The claim of “state secrets,” “executive privilege,” and, ultimately, “national security” must trump judicial concerns, Perlman argues, and he goes on to say that the judiciary should not be allowed to “substitute its judgment for the judgment of the executive.” The case will be labeled United States of America v. Patricia Reynolds, Phyllis Brauner, and Elizabeth Palya, and will usually be shortened to the more colloquial US v. Reynolds. The Vinson Court – In 2008, author Barry Siegel, in his book Claim of Privilege, will note that the recent ascension of Fred Vinson as the Supreme Court’s Chief Justice does not bode well for the plaintiffs in the case. President Truman placed Vinson, whom Siegel calls Truman’s “poker and drinking buddy,” as Chief Justice to try to achieve consensus between the two contentious blocs of justices on the Court. Siegel notes that Vinson is widely considered an intellectual and legal lightweight, with a tendency to take the side of the government on issues in which he lacks a full understanding. Siegel will write that in many instances, Vinson functions “as part of the executive branch.” ‘Dennis’ Case Preview of Court’s Tendency to Favor Executive Branch – Vinson had written the opinion in a 1951 ruling, Dennis et al v. United States, where the Court had upheld a lower court ruling that twelve acknowledged American Communists were sent to jail under the Smith Act—not for breaking the law, but for “teaching and advocating,” in the words of the original indictment. Siegel will call that ruling “the nadir of the Vinson Court.” According to Siegel, the Dennis ruling showed the Court’s predisposition to give the government, and particularly the executive branch, plenty of leeway in its findings in subsequent cases such as Reynolds. [Siegel, 2008, pp. 157-162]
Lawyers make their opening arguments before the Supreme Court in the case of US v Reynolds, the lawsuit that finds the government had no overarching right to unilaterally refuse to deliver classified documents in the course of a wrongful death lawsuit against the government (see December 11, 1951). The government has appealed the appellate court ruling to the Supreme Court (see March 1952). Because four of the nine justices had voted not to hear the case—in essence to let the appellate court ruling stand—the defense is cautiously optimistic about the Court’s decision. Judiciary Has No Right to Interfere with Powers of the Executive, Government Argues – Acting Solicitor General Robert Stern tells the Court that the appellate judges’ decision, written by Judge Albert Maris, “is an unwarranted interference with the powers of the executive,” and that the decision forced the government to choose “whether to disclose public documents contrary to the public interest [or] to suffer the public treasury to be penalized” (a reference to the decision to award the plaintiffs monetary damages—see October 12, 1950). The judiciary “lack[s] power to compel disclosure by means of a direct demand [as well as] by the indirect method of an order against the United States, resulting in judgment when compliance is not forthcoming.” Executive Has No Right to Unilaterally Withhold Information, Defense Counters – Stern’s arguments are countered by those of the plaintiffs’ lawyer, Charles Biddle, who writes, “We could rest our case with confidence on the clear opinion of Judge Maris,” but continues by arguing that if the government asserts a claim of executive privilege on the basis of national security, it must make the documents available to the Court for adjudication, or at least provide enough information for the Court to judge whether the documents present in fact a threat to national security if disclosed. This is particularly true, Biddle argues, “where there is no showing that the documents in question contain any military secret” (Biddle is unaware that the documents’ classification status had been reduced two years before—see September 14, 1950). “The basic question here is whether those in charge of the various departments of the government may refuse to produce documents properly demanded… in a case where the government is a party (see June 21, 1949), simply because the officials themselves think it would be better to keep them secret, and this without the Courts having any power to question the propriety of such decision.… In other words, say the officials, we will tell you only what we think it is in the public interest that you should know. And furthermore, we may withhold information not only about military or diplomatic secrets, but we may also suppress documents which concern merely the operation of the particular department if we believe it would be best, for purposes of efficiency or morale, that no one outside of the department, not even the Court, should see them.” No Basis for Claims of Military Secrets – Biddle argues that because of responses he has received to his demands over the course of this lawsuit, he is relatively sure there are no military secrets contained within them. “[T]he proof is to the contrary,” he says, and goes on to say that had the Air Force disclosed from the outset that the plane crash, the fatal accident that sparked the original lawsuit (see October 6, 1948), was probably caused by pilot error and not by random chance, the plaintiffs may have never needed to ask for the disclosure of the documents in question, the accident reports on the crash (see October 18, 1948). “The secretary [of the Air Force]‘s formal claim of privilege said that the plane at the time was engaged in a secret mission and that it carried confidential equipment,” Biddle says, “but nowhere was it asserted that either had anything to do with the accident. The whole purpose of the demand by the respondents was for the purpose of finding out what caused the accident.… They were not in the least interested in the secret mission or equipment.” [Siegel, 2008, pp. 165-170]
In their regular Saturday conference, the nine Supreme Court justices discuss the issues and arguments surrounding US v Reynolds (see October 21, 1952). According to the notes from the discussion, Chief Justice Fred Vinson, a strong advocate for expansive executive powers (see March 1952), says the case “boils down to Executive Branch determine privilege.” Other notes by Justice William O. Douglas suggest that Vinson isn’t convinced that the US must “be forced to pay for exercising its privilege” (see October 12, 1950). A straw vote taken at the end of the discussion shows five justices in favor of the government’s position to unilaterally withhold classified documents—overturning the appellate court decision (see December 11, 1951), and four in favor of allowing the decision to stand. [Siegel, 2008, pp. 171]
The US Supreme Court upholds the power of the federal government’s executive branch to withhold documents from a civil suit on the basis of executive privilege and national security (see October 25, 1952). The case, US v Reynolds, overturns an appellate court decision that found against the government (see December 11, 1951). Originally split 5-4 on the decision, the Court goes to 6-3 when Justice William O. Douglas joins the majority. The three dissenters, Justices Hugo Black, Felix Frankfurter, and Robert Jackson, refuse to write a dissenting opinion, instead adopting the decision of the appellate court as their dissent. ‘State Secrets’ a Valid Reason for Keeping Documents out of Judicial, Public Eye – Chief Justice Fred Vinson writes the majority opinion. Vinson refuses to grant the executive branch the near-unlimited power to withhold documents from judicial review, as the government’s arguments before the court implied (see October 21, 1952), but instead finds what he calls a “narrower ground for defense” in the Tort Claims Act, which compels the production of documents before a court only if they are designated “not privileged.” The government’s claim of privilege in the Reynolds case was valid, Vinson writes. But the ruling goes farther; Vinson upholds the claim of “state secrets” as a reason for withholding documents from judicial review or public scrutiny. In 2008, author Barry Siegel will write: “In truth, only now was the Supreme Court formally recognizing the privilege, giving the government the precedent it sought, a precedent binding on all courts throughout the nation. Most important, the Court was also—for the first time—spelling out how the privilege should be applied.” Siegel will call the Reynolds ruling “an effort to weigh competing legitimate interests,” but the ruling does not allow judges to see the documents in order to make a decision about their applicability in a court case: “By instructing judges not to insist upon examining documents if the government can satisfy that ‘a reasonable danger’ to national security exists, Vinson was asking jurists to fly blind.” Siegel will mark the decision as “an act of faith. We must believe the government,” he will write, “when it claims [the accident] would reveal state secrets. We must trust that the government is telling the truth.” Time of Heightened Tensions Drives Need for Secrecy – Vinson goes on to note, “[W]e cannot escape judicial notice that this is a time of vigorous preparation for the national defense.” Locked in the Cold War with the Soviet Union, and fighting a war in Korea, the US is, Vinson writes, in a time of crisis, and one where military secrets must be kept and even encouraged. [U. S. v. Reynolds, 3/9/1953; Siegel, 2008, pp. 171-176] Future Ramifications – Reflecting on the decision in 2008, Siegel will write that while the case will not become as well known as many other Court decisions, it will wield significant influence. The ruling “formally recognized and established the framework for the government’s ‘state secrets’ privilege—a privilege that for decades had enabled federal agencies to conceal conduct, withhold documents, and block civil litigation, all in the name of national secrecy.… By encouraging judicial deference when the government claimed national security secrets, Reynolds had empowered the Executive Branch in myriad ways. Among other things, it had provided a fundamental legal argument for much of the Bush administration’s response to the 9/11 terrorist attacks. Enemy combatants such as Yaser Esam Hamdi (see December 2001) and Jose Padilla (see June 10, 2002), for many months confined without access to lawyers, had felt the breath of Reynolds. So had the accused terrorist Zacarias Moussaoui when federal prosecutors defied a court order allowing him access to other accused terrorists (see March 22, 2005). So had the Syrian-Canadian Maher Arar (see September 26, 2002), like dozens of others the subject of a CIA extraordinary rendition to a secret foreign prison (see After September 11, 2001). So had hundreds of detainees at the US Navy Base at Guantanamo Bay, held without charges or judicial review (see September 27, 2001). So had millions of American citizens, when President Bush, without judicial knowledge or approval, authorized domestic eavesdropping by the National Security Agency (see Early 2002). US v. Reynolds made all this possible. The bedrock of national security law, it had provided a way for the Executive Branch to formalize an unprecedented power and immunity, to pull a veil of secrecy over its actions.” [Siegel, 2008, pp. ix-x]
A federal court rules that because of the government’s “state secrets” privilege (see March 9, 1953), a civilian plaintiff suing the US Navy over a contractual agreement cannot even access “non-privileged,” or unclassified, information from the Navy because to do so might “threaten disclosure” of material that goes against “the overriding interest of the United States… preservation of its state secrets privilege precludes any further attempt to pursue litigation.” [Siegel, 2008, pp. 196-197]
In the second of two rulings in the case of Halkin v Helms, the judiciary comes down squarely on the side of the US government against charges of illegal surveillance and wiretapping leveled against American anti-war protesters. The district and appellate courts uphold the federal government’s “state secrets” claim as codified in US v Reynolds (see March 9, 1953), thereby denying the plaintiffs the right to see government information that they claim would prove their case. The DC Court of Appeals writes that the federal courts do not have any constitutional role as “continuing monitors of the wisdom and soundness of Executive action,” and instead the courts “should accord utmost deference to executive assertions of privilege on grounds of military or diplomatic secrets… courts need only be satisfied that there is a reasonable danger” that military secrets might be exposed. [Siegel, 2008, pp. 196-196]
The DC Court of Appeals rejects a claim by civilian plaintiffs to force the government to disclose classified information as part of a lawsuit, citing the “state secrets” privilege (see March 9, 1953). Furthermore, the court broadens the definition of “state secrets” to include “disclosure of intelligence-gathering methods or capabilities and disruption of diplomatic relations.” [Siegel, 2008, pp. 197]
A lawsuit against the FBI’s investigation of a sixth-grade boy and his school project to create an “encyclopedia of the world” is stopped when an appeals court rules that the agency is shielded by the “state secrets” privilege (see March 9, 1953). Unable to secure information from the FBI as to why it investigated him, the child had therefore “failed to sustain his burden of proof [and] the cause of action was properly dismissed.” [Siegel, 2008, pp. 197]
A US appellate court refuses to find a number of military contractors liable in the death of Earl Patton Ryals, who died with 36 of his fellow crewmen in the Iraqi attack on the USS Stark (see May 17, 1987 and After). Ryals’s estate claims that he and his fellows died in part because of negligence on the part of the contractors who designed, manufactured, tested, and marketed the weapons system on board the Stark, including the Phalanx anti-missile system. In turning down the estate’s claim, the court cites the government’s “state secrets” privilege (see March 9, 1953), saying that the facts of the issue could not be resolved without examining classified Navy documents. And even without this reason, the court rules, Ryals’s estate cannot see the documents because the case presents “a political question” about military decision-making that is not subject to judicial review. [Zuckerbraun v. General Dynamics Corp., 6/13/1991; Siegel, 2008, pp. 197-198] A year later, a similar case will be dismissed on the grounds that a trial might conceivably reveal “state secrets” (see September 16, 1992).
A federal appeals court upholds the dismissal of a lawsuit filed on behalf of 23 Navy sailors killed in the attack on the USS Stark (see May 17, 1987 and After) against a number of defense contractors. A similar lawsuit on behalf of one of the sailors killed in the attack was dismissed a year before (see June 13, 1991). This time the plaintiffs file over 2,500 pages of unclassified documentary evidence supporting their claims that the contractors were negligent in their design and implementation of the weapons systems aboard the Stark. The appeals court finds that regardless of the amount of evidence entered, to allow the trial would be to potentially infringe on the US government’s “state secrets” privilege (see March 9, 1953). “[N]o amount of effort could safeguard the privileged information,” the court rules. The court adds that “classified and unclassified information cannot always be separated, and therefore courts must restrict access not only to classified material, but to “those pieces of evidence” that “press so closely upon highly sensitive material that they create a hgh risk of inadvertent or indirect disclosures.” [Siegel, 2008, pp. 198]
Sheila E. Witnall, the secretary of the Air Force, declassifies all Air Force accident reports prior to January 25, 1956. The declassification includes the 1948 crash of the B-29 bomber that killed nine of 13 crew members during a secret “Project Banshee” mission (see October 6, 1948). The formerly classified reports had been at the heart of the case of US v Reynolds (see March 9, 1953) that sparked the so-called “state secrets” privilege. Four years after the declassification, the daughter of one of the slain civilians on board, Judy Palya Loether, finds the accident report on the Internet; the discovery spurs her to begin looking into the circumstances of her father’s death, and ultimately will result in a second lawsuit being filed on behalf of the families of the slain crewmen (see February 26, 2003). [Siegel, 2008, pp. 205-208]
Judy Palya Loether, the daughter of a civilian engineer killed in a 1948 plane crash while on a secret government mission (see October 6, 1948), reads over the voluminous reports of the accident that claimed her father’s life. The reports, now declassified (see January 1996), had been at the heart of a landmark lawsuit that gave judicial recognition to the government’s “state secrets” privilege (see March 9, 1953). Loether is shocked to find that the reports contain nothing that could be construed as military or tactical secrets of any kind, though for decades the government has insisted that they could not be revealed, even to a judge (see October 18, 1948, July 26, 1950, August 7-8, 1950, September 21, 1950, and October 19, 1951). What they do contain is a compendium of witness statements and expert findings that indicate a number of mistakes and errors led to the crash. Loether begins contacting the families of the widows who had filed the original lawsuit against the government (seeJune 21, 1949) to share her findings. [Siegel, 2008, pp. 210-211] Loether is confused and angered over the contents of the reports, and the government’s response to the lawsuit. She cannot understand why the government pressed so hard to keep the reports classified, knowing that they contained no sensitive information about the secret missile program, and is particularly troubled by the fact that at least two senior government officials signed affidavits affirming the reports’ inclusion of such information while knowing that the reports contained nothing of the sort. She wonders if government officials had perhaps decided to lie about the reports in order to establish some sort of state secrets privilege. In September 2002, lawyers Wilson Brown and Jeff Almeida, retained by Loether and others who lost family members in the crash, come to the same conclusion. As Almeida will say to Brown: “I’ve read this report. There’s nothing in there.” [Siegel, 2008, pp. 219] As time goes on, Loether and her colleagues files a second lawsuit seeking to overturn the first Supreme Court verdict (see February 26, 2003).
Lawyers Wilson Brown and Jeff Almeida file a request with the Supreme Court, asking it to reconsider its landmark 1953 case, US v Reynolds (see March 9, 1953). The lawyers are representing several family members who lost fathers (and, in one case, a husband) in the airplane crash that led to the original case (see October 6, 1948). The lawyers note that the government’s original claim that the accident reports could not be released due to the inclusion of “military secrets” (see July 26, 1950) is false, as the accident reports have been declassified and examined for such secrets (see February 2000). “Indeed,” the lawyers write, “they are no more than accounts of a flight that, due to the Air Force’s negligence, went tragically awry. In telling the Court otherwise, the Air Force lied. In reliance upon that lie, the Court deprived the widows [the three original plaintiffs] of their judgments. It is for this Court, through issuance of a writ of error coram nobis and in exercise of its inherent power to remedy fraud, to put things right… United States v. Reynolds stands as a classic ‘fraud on the court,’ one that is most remarkable because it succeeded in tainting a decision of our nation’s highest tribunal.” [Siegel, 2008, pp. 249-251] On July 26, 2002, one of the plaintiffs, Judy Palya Loether, wrote in an e-mail to Brown: ”US v Reynolds has come to be a landmark case that is used by the government when it claims that documents cannot be turned over to the courts because of national security. Yet this very case is now proven, in my mind, to be based on a lie that did injury to 3 widows and 5 little children (see February 2000)… It allowed the government an area of no checks and balances (see December 11, 1951). How many times has the government used this decision, not to protect national security, but for its own purposes?” [Siegel, 2008, pp. 237-238]
Wilson Brown, who has filed a petition with the Supreme Court asking that it reconsider its landmark 1953 US v Reynolds case (see March 9, 1953), receives an e-mail from Alison Massagli of the White House’s Foreign Intelligence Advisory Board. Massagli, who learned of the petition from an article in the Philadelphia Inquirer, wants a copy of Brown’s petition. Brown notices that Massagli sent a copy of the e-mail to Catherine Lotrionete of the National Security Council. Brown is pleased that the case has garnered some attention. He e-mails the plaintiffs he is representing, saying, “I thought you would find it interesting that at least one arm of the Executive Branch is interested in our case.” [Siegel, 2008, pp. 257]
Solicitor General Theodore Olson submits a response to the request that the Supreme Court reopen the 1953 state secrets case US v Reynolds (see February 26, 2003). Olson argues that once a decision has been made, it should be respected—“the law favors finality,” he writes. More surprisingly to the plaintiffs and their lawyers, Olson argues that there was no fraud perpetuated in the original case, a position hard to defend in the face of the declassified accident reports that were the heart of that case (see February 2000 and February 26, 2003). The accident reports never contained military secrets or secret information of any kind, a claim that the Court’s 1953 decision hinged on, but Olson argues that because of the wording of the claims—releasing the reports to the original plaintiffs “might lead to disclosure” of classified information—then the old claims of protecting state secrets are still technically valid (see March 9, 1953). Olson echoes the author of the original Supreme Court opinion, Fred Vinson, by reminding the Court that “[t]he 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.” The lawyer for the plaintiffs in the petition, Wilson Brown, is both angered and impressed by what he calls Olson’s “remarkable obfuscation.” By hiding behind the vague wording of the original claims of state secrets, Olson is implying that this case must turn on factual issues—and therefore should be heard in a lower court, not the Supreme Court. Brown, in his response co-written by colleague Jeff Almeida, calls Olson’s arguments “disingenuous” and insists that the plaintiffs’ original case “had been vitiated through fraud.” [Siegel, 2008, pp. 261-264]
Constitutional lawyers and experts believe that the Supreme Court will not accept the petition to reopen the landmark US v Reynolds case (see February 26, 2003 and May 30, 2003). Kate Martin of the Center for National Security Studies says that the petition is essentially frivolous, and says of the claim that Reynolds was decided on the basis of a fraudulent government presentation: “That the facts of the original case are not true is irrelevant to the state secrets privilege (see March 9, 1953). The idea that it undercuts the privilege is ridiculous. Often in cases, after they’re decided, the facts are proven not to be true. That’s the nature of the legal system. Sometimes people lie. Sometimes there’s new information.” Law professor Jonathan Turley is more sympathetic to the petition, but agrees that the Supreme Court will probably not hear it: “For the Supreme Court to address the fact clearly that it had been lied to would open difficult issues.… 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. They’re not going to face that. They won’t reopen this. I think Reynolds is like discovering an unfaithful wife after fifty 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” (see December 1980, September 1982, November 1984, January 1990, June 13, 1991, and September 16, 1992). [Siegel, 2008, pp. 266-267]
The Supreme Court refuses to hear a petition to reopen the 1953 state secrets case US v Reynolds (see February 26, 2003). It issues a one-sentence ruling: “The motion for leave to file a writ of error coram nobis is denied.” Plaintiff Judy Palya Loether says: “Maybe the law isn’t about right or wrong. The concept that the government lied to the Supreme Court (see February 2000) seemed to me a terrible thing to do. It appears that the justices were not as appalled as I was.” Further attempts to reopen the case in lower courts will also fail. [Siegel, 2008, pp. 267-298]
Lawyers for accused terrorist Zacarias Moussaoui, battling to force the US government to allow them to depose other accused terrorists as part of their defense (see May 14, 2003), contact Jeff Almeida, the lawyer for the plaintiffs who sought to reopen the 1953 state secrets case US v Reynolds. They ask how his petition for coram nobis—a request for the court to “right a wrong”—went. Almeida tells them that the Court turned the petition down without comment (see June 23, 2003). Moussaoui’s lawyers tell Almeida that the government prosecutors were so reliant on Reynolds that “they had been waving it around the courtroom any chance they got.” Plaintiff Susan Brauner later says that she is glad Moussaoui’s lawyers contacted Almeida, and says she finds their interest “most encouraging.” She will add, “If we eventually walk away with nothing more than one concrete example where the case was of possible use to someone else… then I will believe we have done some good in impacting or at least raising the issue.” [Siegel, 2008, pp. 272-273]
The Bush administration submits a legal brief arguing that the Electronic Frontier Foundation’s lawsuit against AT&T, alleging that firm cooperated with the NSA’s domestic surveillance program (see January 31, 2006), should be thrown out of court because of the government’s “state secrets” privilege (see March 9, 1953). Justice Department lawyers want Judge Vaughn Walker to examine classified documents that they say will convince him to dismiss the lawsuit. However, the government does not want the defense lawyers to see that material. “No aspect of this case can be litigated without disclosing state secrets,” the government argues. “The United States has not lightly invoked the state secrets privilege, and the weighty reasons for asserting the privilege are apparent from the classified material submitted in support of its assertion.” [CNET News, 5/26/2006]
Attorney General-nominee Eric Holder says that if he is confirmed, he intends to review current litigation in which the Bush administration asserted the so-called “state secrets” privilege (see March 9, 1953), and that he intends to minimize the use of the privilege during his tenure. “I will review significant pending cases in which DOJ [the Justice Department] has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations,” he writes in a response to pre-confirmation questions. (Shortly after Holder’s testimony, the Justice Department again asserts the “state secrets” privilege in a case involving a Guantanamo detainee—see February 9, 2009). Holder adds: “I firmly believe that transparency is a key to good government. Openness allows the public to have faith that its government obeys the law.” To a related question, he asserts his belief that the Office of Legal Counsel (OLC) must disclose as many of the opinions it generates as possible: “Once the new assistant attorney general in charge of the Office of Legal Counsel is confirmed, I plan to instruct that official to review the OLC’s policies relating to publication of its opinions with the [objective] of making its opinions available to the maximum extent consistent with sound practice and competing concerns.” [Federation of American Scientists, 2/2/2009; Senate Judiciary Committee, 2/2/2009] Weeks later, the Justice Department will release nine controversial OLC memos from the Bush administration (see March 2, 2009).
A Justice Department official says that the Obama administration will continue to assert the so-called “state secrets privilege” (see March 9, 1953) in a lawsuit filed by Guantanamo detainee Binyam Mohamed (see February 8, 2009). In the case Mohamed et al v Jeppesen Dataplan, Inc, Mohamed and four former detainees are suing a Boeing subsidiary, Jeppesen Dataplan, for cooperating with the CIA in subjecting them to “extraordinary rendition,” flying them to foreign countries and secret overseas CIA prisons where, they say, they were tortured. The case was thrown out a year ago, but the American Civil Liberties Union (ACLU) has appealed it. According to a source inside the Ninth US District Court, a Justice Department lawyer tells the presiding judge that its position has not changed, that the new administration stands behind arguments that the previous administration made, with no ambiguity at all. The lawyer says the entire subject matter remains a state secret. According to Justice Department spokesman Matt Miller, “It is the policy of this administration to invoke the state secrets privilege only when necessary and in the most appropriate cases, consistent with the United States Supreme Court’s decision in Reynolds that the privilege not ‘be lightly invoked.’” Miller adds that Attorney General Eric Holder is conducting a review of all state secret privilege matters. “The Attorney General has directed that senior Justice Department officials review all assertions of the State Secrets privilege to ensure that the privilege is being invoked only in legally appropriate situations,” Miller says. “It is vital that we protect information that, if released, could jeopardize national security. The Justice Department will ensure the privilege is not invoked to hide from the American people information about their government’s actions that they have a right to know. This administration will be transparent and open, consistent with our national security obligations.” The ACLU’s Anthony Romero says that the Obama administration is doing little besides offering “more of the same.” He continues: “Eric Holder’s Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition, and the most grievous human rights violations committed by the American government. This is not change. This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama’s Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again.” ACLU attorney Ben Wizner, who argued the case for Mohamed and the other plaintiffs, adds: “We are shocked and deeply disappointed that the Justice Department has chosen to continue the Bush administration’s practice of dodging judicial scrutiny of extraordinary rendition and torture. This was an opportunity for the new administration to act on its condemnation of torture and rendition, but instead it has chosen to stay the course. Now we must hope that the court will assert its independence by rejecting the government’s false claims of state secrets and allowing the victims of torture and rendition their day in court.” [ABC News, 2/9/2009]
A federal appeals court rejects the Obama administration’s assertion that a potential threat to national security should stop a lawsuit challenging the government’s warrantless wiretapping program. The Justice Department had requested an emergency stay in a case brought by a defunct Islamic charity, the Al Haramain Islamic Foundation (see February 28, 2006). Al Haramain has asked that classified information be made available to the court to prove its case that the electronic surveillance brought to bear against it by the government was illegal; Justice Department lawyers contend that the information needs to remain classified and unavailable to the court, and cite the “state secrets” privilege (see March 9, 1953) as legal justification. Although the court rejects the request for the stay, Justice Department lawyers say they will continue fighting to keep the information secret. “The government respectfully requests that the court refrain from further actions to provide plaintiffs with access to classified information,” says a filing made by the Justice Department in regards to the ruling. A lawyer for Al Haramain, Steven Goldberg, says: “All we wanted was our day in court and it looks like we’re finally going to get our day in court. This case is all about challenging an assertion of power by the executive branch which is extraordinary.” The American Civil Liberties Union’s Ann Brick says the court has now crafted a way to review the issue in which “national security isn’t put at risk, but the rule of law can still be observed.” [Associated Press, 2/27/2009] Days later, the Justice Department will file a brief announcing its intention to refuse to honor the appeals court’s decision (see March 2, 2009).
The Justice Department defies a recent court order (see February 27, 2009) and refuses to provide a document that might prove the Bush administration conducted illegal wiretaps on a now-defunct Islamic charity. The Justice Department files a brief with a California federal district court challenging the court’s right to carry out its own decision to make that evidence available in a pending lawsuit. Even though the document is critical to the lawsuit, the lawyers can obtain the necessary top-secret clearances, and the document would not be made public, the Justice Department claims that the document cannot be entered into evidence. The lawyers for Al Haramain, the Islamic charity and the plaintiffs in the suit, calls the Justice Department’s decision “mind-boggling.” Government’s Position – For its part, the Justice Department writes in a brief that the decision to release the document “is committed to the discretion of the executive branch, and is not subject to judicial review.” The document has been in the possession of the court since 2004, when the government inadvertently released it to the plaintiffs. In the same brief, the Justice Department writes: “If the Court intends to itself grant access to classified information directly to the plaintiffs’ counsel, the government requests that the Court again provide advance notice of any such order, as well as an ex parte, in camera description of the information it intends to disclose, to enable the government to either make its own determination about whether counsel has a need to know, or to withdraw that information from submission to the Court and use in this case. If the Court rejects either action by the government, the government again requests that the Court stay proceedings while the government considers whether to appeal any such order.” The statement is an implied threat that the Justice Department lawyers will themselves physically remove the document from the court files if the judge says he has the right to allow Al Haramain’s lawyers to see it. Response from Plaintiff’s Attorney – Jon Eisenberg, a lawyer for Al-Haramain, says in an e-mail: “It’s a not-so-thinly veiled threat to send executive branch authorities (the FBI? the Army?) to Judge [Virginia] Walker’s chambers to seize the classified material from his files! In my view, that would be an unprecedented violation of the constitutional separation of powers. I doubt anything like it has happened in the history of this country.” Eisenberg says that the Obama administration, through the Justice Department, “seems to be provoking a separation-of-powers confrontation with Judge Walker.” Administration’s Second Use of State Secrets – This is the second time the Obama administration has invoked the “state secrets” privilege to keep information secret (see February 9, 2009). Marc Rotenberg of the Electronic Privacy Information Center (EPIC) says: “In the Bush administration, the state secrets doctrine was used to buttress the power of the president and make it difficult if not impossible to contest such issues as presidential authority to conduct warrantless wiretapping in the United States. We would think that when such disagreements occur, it’s properly before the judiciary to resolve them. But the Bush administration asserted the state secrets doctrine for the purpose of making it effectively impossible for courts to review the matter.” The Al Haramain case is significant because of “the apparent willingness of the Obama administration’s Justice Department to carry further that same argument in federal court. It is of great concern.” [Washington Independent, 3/2/2009]
On the evening of February 13, 1945, an orgy of genocide and barbarism began against a defenseless German city, one of the greatest cultural centers of northern Europe. Within less than 14 hours not only was it reduced to flaming ruins, but an estimated one-third of its inhabitants, possibly as many as a half a million, had perished in what was the worst single event massacre of all time.
___
Toward the end of World War II, as Allied planes rained death and destruction over Germany, the old Saxon city of Dresden lay like an island of tranquillity amid desolation. Famous as a cultural center and possessing no military value, Dresden had been spared the terror that descended from the skies over the rest of the country.
In fact, little had been done to provide the ancient city of artists and craftsmen with anti-aircraft defenses. One squadron of planes had been stationed in Dresden for awhile, but the Luftwaffe decided to move the aircraft to another area where they would be of use. A gentlemen’s agreement seemed to prevail, designating Dresden an “open city.”
February 13/14 1945: Holocaust over Dresden, known as the Florence of the North. Dresden was a hospital city for wounded soldiers. Not one military unit, not one anti-aircraft battery was deployed in the city. Together with the 600.000 refugees from Breslau, Dresden was filled with nearly 1.2 million people. Churchill had asked for “suggestions how to blaze 600.000 refugees”. He wasn’t interested how to target military installations 60 miles outside of Dresden. More than 700.000 phosphorus bombs were dropped on 1.2 million people. One bomb for every 2 people. The temperature in the centre of the city reached 1600 o centigrade. More than 260.000 bodies and residues of bodies were counted. But those who perished in the centre of the city can’t be traced. Approximately 500.000 children, women, the elderly, wounded soldiers and the animals of the zoo were slaughtered in one night.
On Shrove Tuesday, February 13, 1945, a flood of refugees fleeing the Red Army 60 miles away had swollen the city’s population to well over a million. Each new refugee brought fearful accounts of Soviet atrocities. Little did those refugees retreating from the Red terror imagine that they were about to die in a horror worse than anything Stalin could devise.
Normally, a carnival atmosphere prevailed in Dresden on Shrove Tuesday. In 1945, however, the outlook was rather dismal. Houses everywhere overflowed with refugees, and thousands were forced to camp out in the streets shivering in the bitter cold.
However, the people felt relatively safe; and although the mood was grim, the circus played to a full house that night as thousands came to forget for a moment the horrors of war. Bands of little girls paraded about in carnival dress in an effort to bolster warning spirits. Half-sad smiles greeted the laughing girls, but spirits were lifted.
No one realized that in less than 24 hours those same innocent children would die screaming in Churchill’s firestorms. But, of course, no one could know that then. The Russians, to be sure, were savages, but at least the Americans and British were “honorable.”
So, when those first alarms signaled the start of 14 hours of hell, Dresden’s people streamed dutifully into their shelters. But they did so without much enthusiasm, believing the alarms to be false, since their city had never been threatened from the air. Many would never come out alive, for that “great democratic statesman,” Winston Churchill–in collusion with that other “great democratic statesman,” Franklin Delano Roosevelt–had decided that the city of Dresden was to be obliterated by saturation bombing.
What where Churchill’s motives? They appear to have been political, rather than military. Historians unanimously agree that Dresden had no military value. What industry it did have produced only cigarettes and china.
But the Yalta Conference was coming up, in which the Soviets and their Western allies would sit down like ghouls to carve up the shattered corpse of Europe. Churchill wanted a trump card–a devastating “thunderclap of Anglo-American annihilation”–with which to “impress” Stalin.
That card, however, was never played at Yalta, because bad weather delayed the originally scheduled raid. Yet Churchill insisted that the raid be carried out–to “disrupt and confuse” the German civilian population behind the lines.
Dresden’s citizens barely had time to reach their shelters. The first bomb fell at 10:09 p.m. The attack lasted 24 minutes, leaving the inner city a raging sea of fire. “Precision saturation bombing” had created the desired firestorm.
A firestorm is caused when hundreds of smaller fires join in one vast conflagration. Huge masses of air are sucked in to feed the inferno, causing an artificial tornado. Those persons unlucky enough to be caught in the rush of wind are hurled down entire streets into the flames. Those who seek refuge underground often suffocate as oxygen is pulled from the air to feed the blaze, or they perish in a blast of white heat–heat intense enough to melt human flesh.
One eyewitness who survived told of seeing “young women carrying babies running up and down the streets, their dresses and hair on fire, screaming until they fell down, or the collapsing buildings fell on top of them.”
There was a three-hour pause between the first and second raids. The lull had been calculated to lure civilians from their shelters into the open again. To escape the flames, tens of thousands of civilians had crowded into the Grosser Garten, a magnificent park nearly one and a half miles square.
The second raid came at 1:22 a.m. with no warning. Twice as many bombers returned with a massive load of incendiary bombs. The second wave was designed to spread the raging firestorm into the Grosser Garten.
It was a complete “success.” Within a few minutes a sheet of flame ripped across the grass, uprooting trees and littering the branches of others with everything from bicycles to human limbs. For days afterward, they remained bizarrely strewn about as grim reminders of Allied sadism.
At the start of the second air assault, many were still huddled in tunnels and cellars, waiting for the fires of the first attack to die down. At 1:30 a.m. an ominous rumble reached the ears of the commander of a Labor Service convoy sent into the city on a rescue mission. He described it this way:
“The detonation shook the cellar walls. The sound of the explosions mingled with a new, stranger sound which seemed to come closer and closer, the sound of a thundering waterfall; it was the sound of the mighty tornado howling in the inner city.”
MELTING HUMAN FLESH
Others hiding below ground died. But they died painlessly–they simply glowed bright orange and blue in the darkness. As the heat intensified, they either disintegrated into cinders or melted into a thick liquid–often three or four feet deep in spots.
Shortly after 10:30 on the morning of February 14, the last raid swept over the city. American bombers pounded the rubble that had been Dresden for a steady 38 minutes. But this attack was not nearly as heavy as the first two.
However, what distinguished this raid was the cold-blooded ruthlessness with which it was carried out. U.S. Mustangs appeared low over the city, strafing anything that moved, including a column of rescue vehicles rushing to the city to evacuate survivors. One assault was aimed at the banks of the Elbe River, where refugees had huddled during the horrible night.
In the last year of the war, Dresden had become a hospital town. During the previous night’s massacre, heroic nurses had dragged thousands of crippled patients to the Elbe. The low-flying Mustangs machine-gunned those helpless patients, as well as thousands of old men, women and children who had escaped the city.
When the last plane left the sky, Dresden was a scorched ruin, its blackened streets filled with corpses. The city was spared no horror. A flock of vultures escaped from the zoo and fattened on the carnage. Rats swarmed over the piles of corpses.
A Swiss citizen described his visit to Dresden two weeks after the raid: “I could see torn-off arms and legs, mutilated torsos and heads which had been wrenched from their bodies and rolled away. In places the corpses were still lying so densely that I had to clear a path through them in order not to tread on arms and legs.”
The Korean War, a.k.a. the “Unknown War,” was, in fact, headline news at the time it was being fought (1950-53). Given the Cold War hatreds of the combatants, though, a great deal of the reportage was propaganda, and much of what should have been told was never told. News of the worst atrocities perpetrated against civilians was routinely suppressed and the full story of the horrific suffering of the Korean people—who lost 3-million souls of a total population of 23-million— has yet to be told in full. Filling in many of the blank spaces is Bruce Cumings, chair of the Department of History at the University of Chicago, whose book “The Korean War” (Modern Library Chronicles) takes an objective look at the conflict. In one review, Publishers Weekly says, “In this devastating work he shows how little the U.S. knew about who it was fighting, why it was fighting, and even how it was fighting.
Though the North Koreans had a reputation for viciousness, according to Cumings, U.S. soldiers actually engaged in more civilian massacres. This included dropping over half a million tons of bombs and thousands of tons of napalm, more than was loosed on the entire Pacific theater in World War II, almost indiscriminately. The review goes on to say, “Cumings deftly reveals how Korea was a clear precursor to Vietnam: a divided country, fighting a long anti-colonial war with a committed and underestimated enemy; enter the U.S., efforts go poorly, disillusionment spreads among soldiers, and lies are told at top levels in an attempt to ignore or obfuscate a relentless stream of bad news. For those who like their truth unvarnished, Cumings’s history will be a fresh, welcome take on events that seemed to have long been settled.”
Interviewed in two one-hour installments by Lawrence Velvel, Dean of the Massachusetts School of Law at Andover, producers of Comcast’s “Books of Our Time” with the first installment being shown on Sunday, March 20th, Cumings said U.S. coverage of the war was badly slanted. Hanson Baldwin, the military correspondent for The New York Times, described “North Koreans as locusts, like Nazis, like vermin, who come shrieking on. I mean, this is really hard stuff to read in an era when you don’t get away with that kind of thinking anymore.” Cumings adds, “Rapes were extremely common. Koreans in the South will still say that that was one of the worst things of the war (was how) many American soldiers were raping Korean women.”
Cumings said he was able to draw upon a lot of South Korean research that has come out since the nation democratized in the 1990s about the massacres of Korean civilians. This has been the subject of painstaking research by the Truth and Reconciliation Commission in Seoul and Cumings describes the results as “horrific.” Atrocities by “our side, the South Koreans (ran) six to one ahead of the North Koreans in terms of killing civilians, whereas most Americans would think North Koreans would just as soon kill a civilian to look at him.” The numbers of civilians killed in South Korea by the government, Cumings said, even dwarfed Spaniards murdered by dictator Francisco Franco, the general who overthrew the Madrid government in the 1936-1939 civil war. Cumings said about 100,000 South Koreans were killed in political violence between 1945 and 1950 and perhaps as many as 200,000 more were killed during the early months of the war. This compares to about 200,000 civilians put to death in Spain in Franco’s political massacres. In all, Korea suffered 3 million civilian dead during the 1950-53 war, more killed than the 2.7 million Japan suffered during all of World War II.
One of the worst atrocities was perpetrated by the South Korean police at the small city of Tae Jun. They executed 7,000 political prisoners while Central Intelligence Agency and U.S. military officials looked on, Cumings said. To compound the crime, the Pentagon blamed the atrocity on the Communists, Cumings said. “The Joint Chiefs of Staff classified the photographs of it because they make it clear who’s doing it, and they don’t let the photographs out until 1999 when a Korean finally got them declassified.” To top that off, the historian says, “the Pentagon did a video movie called ‘Crime of Korea’ where you see shots of pits that go on for like a football field, pit after pit of dead people, and (actor) Humphrey Bogart in a voice-over says, ‘someday the Communists will pay for this, someday we’ll get the full totals and believe me we’ll get the exact, accurate totals of the people murdered here and we will make these war criminals pay.’ Now this is a complete reversal of black and white, done as a matter of policy.” Cumings adds that these events represent “a very deep American responsibility for the regime that we promoted, really more than any other in East Asia (and that) was our creation in the late Forties.” Other atrocities, such as the one at No Gun village, Cumings terms “an American massacre of women and children,” which he lays at the feet of the U.S. military.
Initially, reporters from U.S. magazines’ “Look,” “Saturday Evening Post,” “Collier’s,” and “Life,” could report on anything they saw, the historian said. They reported that “the troops are shooting civilians, the South Korean police are awful, they’re opening up pits and putting hundreds of people in them. This is all true.” Within six months, though, U.S. reporters were muzzled by censors, meaning, “you can’t say anything bad about our South Korean ally. Even if you see them blowing an old lady’s head apart, you can’t say that.” Even though his writings on Korea years after the war ended were not censored, New York Times reporter David Halberstam wrote a book on the Korean War (The Coldest Winter) in which “he doesn’t mention the bombing of the North (and) mentions the three-year U.S. occupation of South Korea in one sentence, without giving it any significance,” Cumings said. Besides rape, the Pentagon was firebombing North Korean cities more intensively than any of those it firebombed during World War II. Where it was typical for U.S. bombing to destroy between 40 and 50 percent of a city in that war, the destruction rate in North Korea was much higher: Shin Eui Ju, on the Chinese border, 95 percent destroyed; Pyongyang, 85 percent; and Hamhung, an industrial city, 80 percent.”By the end of 1951, there weren’t many bombing targets left in North Korea.”
Cumings believed that Douglas MacArthur, the General who commanded U.S. forces in Korea was prejudiced against Asians and badly underestimated their fighting capabilities. On the day the North Koreans invaded the South in force on June 25, 1950, MacArthur boasted, according to Cumings, “‘I can beat these guys with one hand tied behind my back’ and within a week he wants a bunch of divisions, and within a month he’s got almost all of the trained American combat forces in the world either in Korea or on their way to Korea.” MacArthur’s slight of the fighting trim of North Korean units was shared by other high American officials. “(John Foster) Dulles, (then U.S. delegate to the United Nations) even says things like, ‘They must put dope into these guys (because) I don’t know how they can fight so fanatically.'” Cumings goes on to explain, the North Korean soldiers “had three or four years of fighting in the Chinese Civil War (for the Communists), so they were crack troops, and our intelligence knew about these people but completely underestimated them, and a lot of Americans got killed because they underestimated them.” Again, when the CIA had warned MacArthur that 200,000 Chinese troops were crossing the border into North Korea, MacArthur said, “I’ll take care of it, don’t worry about it, Chinamen can’t fight.” However, the Chinese routed U.S. forces, clearing them out of Korea in two weeks. “Sometimes I wonder why the world isn’t worse off than it is,” the historian reflected, “because people make such unbelievably stupid decisions that will affect the lives of hundreds of thousands of people (based) on stupid biases.”
The U.S. use of air power to inflict widespread devastation had a profound impact on future North Korean military practice. To escape the rain of death the North Korean military—starting at the time of the Korean War—built 15,000 underground facilities, putting whole factories, dormitories, and even airfields underground. “So you have jets flying into the side of mountains,” Cumings says, as well as 1 million men and women under arms in a nation of 24 million—so that one in every 24 people is in the military. The U.S. military believes the North Koreans have built their nuclear weapons facilities underground—plural, that is, as it is possible they have one or two backups if a facility is destroyed by an enemy attack. While the U.S. today is concerned that North Korea is developing the means to deliver a nuclear weapon, Cummings said the country “has been under nuclear threat since the Korean War. “Our war plans, for decades, called for using nuclear weapons very early in a new war. That’s one reason there hasn’t been a new war,” Cumings said. The armistice that terminated the peninsular war banned the introduction of new and different quality weapons into the region but the U.S. in violation of the pact inserted nuclear-tipped “Honest John” missiles into Korea in 1958. “They said, ‘Well, they’re (always) bringing in new MiGs and everything, so we can do this.’ But to go from conventional weapons to nuclear weapons essentially obliterated the article of the (armistice,) Cumings said. The U.S. has relied so heavily on nuclear deterrent in Korea that one retired general said it has reached a point where “the South Korean army doesn’t think it has to fight in a new war because we’re going to wipe out the North Koreans,” Cumings continued.
The historian said the North Koreans detonated their first nuclear device in 2006—-of about one-half kiloton equivalent (compared to the 20-kiloton bomb that leveled Hiroshima). Three years later, they detonated a 4- to 5-ton kiloton range bomb that could “certainly blast the hell out of a major city.” While Cumings doubts the North Koreans have yet to miniaturize a bomb so that it can ride on one of their medium-range missiles, there is nothing stopping them from, say, putting such a device aboard a freighter and detonating it upon reaching its port of destination. Cummings noted the North Koreans are “very good at manufacturing missiles” and have medium-range missiles “that are among the best in the world outside of the American bailiwick.” These are sold to Iran and Pakistan and, if fired from Korea, could reach all of Japan and the U.S. base on Okinawa, as well as all of South Korea. Any new war on the Korean peninsula, the historian says, “would be an absolute catastrophe” even though the general consensus is that the North Koreans have been unable yet to miniaturize a nuclear warhead.
Getting back to the Korean War, historian Cummings believes that all parties to the war bear some responsibility for its outbreak: “What they did was take an existing civil conflict that had been going on five years and take it to the level of a conventional war, and for that, they bear a lot of responsibility.” Both sides initiated pitched border battles from 1947 onward and the general in charge of the U.S. advisory group said “the South Koreans started more than half of these pitched battles along the 38th parallel border with North Korea between May and December of 1949,” Cumings discovered. “Hundreds of soldiers were dying on both sides and in August there nearly was a Korean War, a year before the one we know…(as the North Koreans pushed) down to the Ongjin Peninsula in the Yellow Sea south of the 38th Parallel” (but which is not contiguous to the rest of South Korea.)
Both the North’s Kim Il-sung and the South’s Syngman Rhee wanted to fight all-out at the time but were restrained by their American and Soviet advisers, respectively. The following year, after his troops came back from China, Kim Il-sung stationed his crack Sixth Division just north of Seoul and when hostilities broke out captured the South Korean capital in just three days. The South did not develop the kind of military that the North Koreans did, and this is one of the truly hidden aspects of the Korean War. …The North Koreans had tens of thousands (50,000)of fighters in the Chinese Civil War they sent across the border as early as Spring of 1947,” Cumings said. This gave the North Koreans a cadre of battle-tested fighters that routed the Seoul government’s troops.
Because of the troops North Korea furnished the Chinese Communists, deep ties were forged between the two countries. “China was a kind of reliable rear area for training and for cementing a very close relationship,” Cumings said. “Our people in Washington (didn’t) begin to understand this….There (were) a lot of hard-liners in the Chinese military that really liked North Korea.” Nor did U.S. intelligence apparently take into account how repressive U.S. actions in South Korea might make its citizens unwilling to fight all-out for a U.S.-backed government run by strongman Rhee. American military officials in South Korea in the late Forties “were outlawing left-wing parties, knocking over left-wing people’s committees and things like this, for two years” on their own initiative, Cumings said. But the development of the containment doctrine and the start of the Cold War in 1947 put the official U.S. imprimatur on their ad hoc policies.
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Sherwood Ross formerly worked for major dailies and wire services. He is a media consultant to MSLAW. Reach him at sherwoodross10@gmail.com
The Massachusetts School of Law, producers of “Educational Forum,” is purposefully dedicated to providing a quality, affordable education to students from minority, low-income, and immigrant households who would otherwise not have the opportunity to obtain a legal education. Through its conferences, publications and broadcasts, the law school also provides vital information on important issues to the public.
One type of “defensive” war is one that follows a successful provocation of aggression from the desired enemy. This method was used to begin, and repeatedly to escalate, the Vietnam War, as recorded in the Pentagon Papers. Setting aside the question of whether the United States should have entered World War II, in either Europe or the Pacific or both, the fact is that our country was unlikely to enter unless attacked. In 1928 the U.S. Senate had voted 85 to 1 to ratify the Kellogg-Briand Pact, a treaty that bound — and still binds — our nation and many others never again to engage in war.
British Prime Minister Winston Churchill’s fervent hope for years was that Japan would attack the United States. This would permit the United States (not legally, but politically) to fully enter the war in Europe, as its president wanted to do, as opposed to merely providing weaponry, as it had been doing. On April 28, 1941, Churchill wrote a secret directive to his war cabinet:
“It may be taken as almost certain that the entry of Japan into the war would be followed by the immediate entry of the United States on our side.”
On May 11, 1941, Robert Menzies, the prime minister of Australia, met with Roosevelt and found him “a little jealous” of Churchill’s place in the center of the war. While Roosevelt’s cabinet all wanted the United States to enter the war, Menzies found that Roosevelt,
“. . . trained under Woodrow Wilson in the last war, waits for an incident, which would in one blow get the USA into war and get R. out of his foolish election pledges that ‘I will keep you out of war.'”
On August 18, 1941, Churchill met with his cabinet at 10 Downing Street. The meeting had some similarity to the July 23, 2002, meeting at the same address, the minutes of which became known as the Downing Street Minutes. Both meetings revealed secret U.S. intentions to go to war. In the 1941 meeting, Churchill told his cabinet, according to the minutes: “The President had said he would wage war but not declare it.” In addition, “Everything was to be done to force an incident.”
Japan was certainly not averse to attacking others and had been busy creating an Asian empire. And the United States and Japan were certainly not living in harmonious friendship. But what could bring the Japanese to attack?
When President Franklin Roosevelt visited Pearl Harbor on July 28, 1934, seven years before the Japanese attack, the Japanese military expressed apprehension. General Kunishiga Tanaka wrote in the Japan Advertiser, objecting to the build-up of the American fleet and the creation of additional bases in Alaska and the Aleutian Islands:
“Such insolent behavior makes us most suspicious. It makes us think a major disturbance is purposely being encouraged in the Pacific. This is greatly regretted.”
Whether it was actually regretted or not is a separate question from whether this was a typical and predictable response to military expansionism, even when done in the name of “defense.” The great unembedded (as we would today call him) journalist George Seldes was suspicious as well. In October 1934 he wrote in Harper’s Magazine: “It is an axiom that nations do not arm for war but for a war.” Seldes asked an official at the Navy League:
“Do you accept the naval axiom that you prepare to fight a specific navy?”
The man replied “Yes.”
“Do you contemplate a fight with the British navy?”
“Absolutely, no.”
“Do you contemplate war with Japan?”
“Yes.”
In 1935 the most decorated U.S. Marine in history at the time, Brigadier General Smedley D. Butler, published to enormous success a short book called “War Is a Racket.” He saw perfectly well what was coming and warned the nation:
“At each session of Congress the question of further naval appropriations comes up. The swivel-chair admirals… don’t shout that ‘We need lots of battleships to war on this nation or that nation.’ Oh, no. First of all, they let it be known that America is menaced by a great naval power. Almost any day, these admirals will tell you, the great fleet of this supposed enemy will strike suddenly and annihilate our 125,000,000 people. Just like that. Then they begin to cry for a larger navy. For what? To fight the enemy? Oh my, no. Oh, no. For defense purposes only. Then, incidentally, they announce maneuvers in the Pacific. For defense. Uh, huh.
“The Pacific is a great big ocean. We have a tremendous coastline in the Pacific. Will the maneuvers be off the coast, two or three hundred miles? Oh, no. The maneuvers will be two thousand, yes, perhaps even thirty-five hundred miles, off the coast.
“The Japanese, a proud people, of course will be pleased beyond expression to see the United States fleet so close to Nippon’s shores. Even as pleased as would be the residents of California were they to dimly discern, through the morning mist, the Japanese fleet playing at war games off Los Angeles.”
In March 1935, Roosevelt bestowed Wake Island on the U.S. Navy and gave Pan Am Airways a permit to build runways on Wake Island, Midway Island, and Guam. Japanese military commanders announced that they were disturbed and viewed these runways as a threat. So did peace activists in the United States. By the next month, Roosevelt had planned war games and maneuvers near the Aleutian Islands and Midway Island. By the following month, peace activists were marching in New York advocating friendship with Japan. Norman Thomas wrote in 1935:
“The Man from Mars who saw how men suffered in the last war and how frantically they are preparing for the next war, which they know will be worse, would come to the conclusion that he was looking at the denizens of a lunatic asylum.”
The U.S. Navy spent the next few years working up plans for war with Japan, the March 8, 1939, version of which described “an offensive war of long duration” that would destroy the military and disrupt the economic life of Japan. In January 1941, eleven months before the attack, the Japan Advertiser expressed its outrage over Pearl Harbor in an editorial, and the U.S. ambassador to Japan wrote in his diary:
“There is a lot of talk around town to the effect that the Japanese, in case of a break with the United States, are planning to go all out in a surprise mass attack on Pearl Harbor. Of course I informed my government.”
On February 5, 1941, Rear Admiral Richmond Kelly Turner wrote to Secretary of War Henry Stimson to warn of the possibility of a surprise attack at Pearl Harbor.
As early as 1932 the United States had been talking with China about providing airplanes, pilots, and training for its war with Japan. In November 1940, Roosevelt loaned China one hundred million dollars for war with Japan, and after consulting with the British, U.S. Secretary of the Treasury Henry Morgenthau made plans to send the Chinese bombers with U.S. crews to use in bombing Tokyo and other Japanese cities. On December 21, 1940, two weeks shy of a year before the Japanese attack on Pearl Harbor, China’s Minister of Finance T.V. Soong and Colonel Claire Chennault, a retired U.S. Army flier who was working for the Chinese and had been urging them to use American pilots to bomb Tokyo since at least 1937, met in Henry Morgenthau’s dining room to plan the firebombing of Japan. Morgenthau said he could get men released from duty in the U.S. Army Air Corps if the Chinese could pay them $1,000 per month. Soong agreed.
On May 24, 1941, the New York Times reported on U.S. training of the Chinese air force, and the provision of “numerous fighting and bombing planes” to China by the United States. “Bombing of Japanese Cities is Expected” read the subheadline. By July, the Joint Army-Navy Board had approved a plan called JB 355 to firebomb Japan. A front corporation would buy American planes to be flown by American volunteers trained by Chennault and paid by another front group. Roosevelt approved, and his China expert Lauchlin Currie, in the words of Nicholson Baker, “wired Madame Chaing Kai-Shek and Claire Chennault a letter that fairly begged for interception by Japanese spies.” Whether or not that was the entire point, this was the letter:
“I am very happy to be able to report today the President directed that sixty-six bombers be made available to China this year with twenty-four to be delivered immediately. He also approved a Chinese pilot training program here. Details through normal channels. Warm regards.”
Our ambassador had said “in case of a break with the United States” the Japanese would bomb Pearl Harbor. I wonder if this qualified!
The 1st American Volunteer Group (AVG) of the Chinese Air Force, also known as the Flying Tigers, moved ahead with recruitment and training immediately and first saw combat on December 20, 1941, twelve days (local time) after the Japanese attacked Pearl Harbor.
On May 31, 1941, at the Keep America Out of War Congress, William Henry Chamberlin gave a dire warning: “A total economic boycott of Japan, the stoppage of oil shipments for instance, would push Japan into the arms of the Axis. Economic war would be a prelude to naval and military war.” The worst thing about peace advocates is how many times they turn out to be right.
On July 24, 1941, President Roosevelt remarked, “If we cut the oil off , [the Japanese] probably would have gone down to the Dutch East Indies a year ago, and you would have had a war. It was very essential from our own selfish point of view of defense to prevent a war from starting in the South Pacific. So our foreign policy was trying to stop a war from breaking out there.”
Reporters noticed that Roosevelt said “was” rather than “is.” The next day, Roosevelt issued an executive order freezing Japanese assets. The United States and Britain cut off oil and scrap metal to Japan. Radhabinod Pal, an Indian jurist who served on the war crimes tribunal after the war, called the embargoes a “clear and potent threat to Japan’s very existence,” and concluded the United States had provoked Japan.
On August 7th four months before the attack the Japan Times Advertiser wrote: “First there was the creation of a superbase at Singapore, heavily reinforced by British and Empire troops. From this hub a great wheel was built up and linked with American bases to form a great ring sweeping in a great area southwards and westwards from the Philippines through Malaya and Burma, with the link broken only in the Thailand peninsula. Now it is proposed to include the narrows in the encirclement, which proceeds to Rangoon.”
By September the Japanese press was outraged that the United States had begun shipping oil right past Japan to reach Russia. Japan, its newspapers said, was dying a slow death from “economic war.”
What might the United States have been hoping to gain by shipping oil past a nation in desperate need of it?
In late October, U.S. spy Edgar Mower was doing work for Colonel William Donovan who spied for Roosevelt. Mower spoke with a man in Manila named Ernest Johnson, a member of the Maritime Commission, who said he expected “The Japs will take Manila before I can get out.” When Mower expressed surprise, Johnson replied “Didn’t you know the Jap fleet has moved eastward, presumably to attack our fleet at Pearl Harbor?”
On November 3, 1941, our ambassador tried again to get something through his government’s thick skull, sending a lengthy telegram to the State Department warning that the economic sanctions might force Japan to commit ” national hara-kiri.” He wrote: ” An armed conflict with the United States may come with dangerous and dramatic suddenness.”
Why do I keep recalling the headline of the memo given to President George W. Bush prior to the September 11, 2001, attacks? “Bin Laden Determined To Strike in U.S.”
Apparently nobody in Washington wanted to hear it in 1941 either. On November 15th, Army Chief of Staff George Marshall briefed the media on something we do not remember as “the Marshall Plan.” In fact we don’t remember it at all.” We are preparing an offensive war against Japan,” Marshall said, asking the journalists to keep it a secret, which as far as I know they dutifully did.
Ten days later Secretary of War Henry Stimson wrote in his diary that he’d met in the Oval Office with Marshall, President Roosevelt, Secretary of the Navy Frank Knox, Admiral Harold Stark, and Secretary of State Cordell Hull. Roosevelt had told them the Japanese were likely to attack soon, possibly next Monday. That would have been December 1st, six days before the attack actually came. “The question,” Stimson wrote, ” was how we should maneuver them into the position of firing the first shot without allowing too much danger to ourselves. It was a difficult proposition.” Was it? One obvious answer was to keep the fleet in Pearl Harbor and keep the sailors stationed there in the dark while fretting about them from comfortable offices in Washington, D.C. In fact, that was the solution our suit-and-tied heroes went with.
The day after the attack, Congress voted for war. Congresswoman Jeannette Rankin (R., Mont.), the first woman ever elected to Congress, and who had voted against World War I, stood alone in opposing World War II (just as Congresswoman Barbara Lee [D., Calif.] would stand alone against attacking Afghanistan 60 years later). One year after the vote, on December 8, 1942, Rankin put extended remarks into the Congressional Record explaining her opposition. She cited the work of a British propagandist who had argued in 1938 for using Japan to bring the United States into the war. She cited Henry Luce’s reference in Life magazine on July 20, 1942, to “the Chinese for whom the U.S. had delivered the ultimatum that brought on Pearl Harbor.” She introduced evidence that at the Atlantic Conference on August 12, 1941, Roosevelt had assured Churchill that the United States would bring economic pressure to bear on Japan. “I cited,” Rankin later wrote, ” the State Department Bulletin of December 20, 1941, which revealed that on September 3 a communication had been sent to Japan demanding that it accept the principle of ‘nondisturbance of the status quo in the Pacific,’ which amounted to demanding guarantees of the inviolateness of the white empires in the Orient.”
Rankin found that the Economic Defense Board had gotten economic sanctions under way less than a week after the Atlantic Conference. On December 2, 1941, the New York Times had reported, in fact, that Japan had been “cut off from about 75 percent of her normal trade by the Allied blockade.” Rankin also cited the statement of Lieutenant Clarence E. Dickinson, U.S.N., in the Saturday Evening Post of October 10, 1942, that on November 28, 1941, nine days before the attack, Vice Admiral William F. Halsey, Jr., (he of the slogan “kill Japs, kill Japs!” ) had given instructions to him and others to “shoot down anything we saw in the sky and to bomb anything we saw on the sea.”
Whether or not World War II was the “good war” we are so often told it was, the idea that it was a defensive war because our innocent imperial outpost in the middle of the Pacific was attacked out of the clear blue sky is a myth that deserves to be buried.
By world standards Canada is a country that respects and protects its citizens’ human rights. That has not always been true, however. Many people are familiar with the story of the internment of Japanese-Canadians in BC during World War II. But not many people are aware that the Japanese were not the only Canadians imprisoned during wartime simply because of their ethnic origin. The history of Canada includes more than one shameful incident in which the Canadian government used the law to violate the civil rights of its own citizens.
The War Measures Act
The War Measures Act was enacted on 22 August 1914, and gave the federal government full authority to do everything deemed necessary “for the security, defence, peace, order and welfare of Canada”. It could be used when the government thought that Canada was about to be invaded or war would be declared, in order to mobilize all segments of society to support the war effort. The Act also gave the federal government sweeping emergency powers that allowed Cabinet to administer the war effort without accountability to Parliament, and without regard to existing legislation. It gave the government additional powers of media censorship, arrest without charge, deportation without trial, and the expropriation, control and disposal of property. This Act was always implemented via an Order in Council, rather than by approval of the democratically elected Parliament.
World War I
After Great Britain entered the First World War in August 1914, the government of Canada issued an Order in Council under the War Measures Act. It required the registration and in certain cases the internment of aliens of “enemy nationality”. This included the more than 80,000 Canadians who were formerly citizens of the Austrian-Hungarian empire. These individuals had to register as “enemy aliens” and report to local authorities on a regular basis. Twenty-four “concentration camps” (later called “internment camps”) were established across Canada, eight of them in British Columbia. View a list of World War 1 Concentration Camps. The camps were supposed to house enemy alien immigrants who had contravened regulations or who were deemed to be security threats. In fact, the “enemy aliens” could be interned if they failed to register, or failed to report monthly, or travelled without permission, or wrote to relatives in Austria.
Other less concrete reasons given for internment included “acting in a very suspicious manner” and being “undesirable”. By the middle of 1915, 4,000 of the internees had been imprisoned for being “indigent” (poor and unemployed). A total of 8,579 Canadians were interned between 1914 and 1920. Over 5,000 of them were of Ukrainian descent. Germans, Poles, Italians, Bulgarians, Croatians, Turks, Serbians, Hungarians, Russians, Jews, and Romanians were also imprisoned. Of the 8,579 internees, only 2,321 could be classed as “prisoners of war” (i.e. “captured in arms or belonging to enemy reserves”); the rest were civilians.
Upon each individual’s arrest, whatever money and property they had was taken by the government. In the internment camps they were denied access to newspapers and their correspondence was censored. They were sometimes mistreated by the guards. One hundred and seven internees died, including several shot while trying to escape. They were forced to work on maintaining the camps, road-building, railway construction, and mining. As the need for soldiers overseas led to a shortage of workers in Canada, many of these internees were released on parole to work for private companies.
The first World War ended in 1918, but the forced labour program was such a benefit to Canadian corporations that the internment was continued for two years after the end of the War.
World War II
During World War II the War Measures Act was used again to intern Canadians, and 26 internment camps were set up across Canada. In 1940 an Order in Council was passed that defined enemy aliens as “all persons of German or Italian racial origin who have become naturalized British subjects since September 1, 1922”. (At the time, Canada didn’t grant passports and citizenship on its own, so immigrants were “naturalized” by becoming British subjects.) A further Order in Council outlawed the Communist Party. Estimates suggest that some 30,000 individuals were affected by these Orders; that is, they were forced to register with the RCMP and to report to them on a monthly basis. The government interned approximately 500 Italians and over 100 communists.
In New Brunswick, 711 Jews, refugees from the holocaust, were interned at the request of British Prime Minister Winston Churchill because he thought there might be spies in the group.
In 1942, the government decided it wanted 2,240 acres of Indian Reserve land at Stony Point, in southwestern Ontario, to establish an advanced infantry training base. Apparently the decision to take Reserve land for the army base was made to avoid the cost and time involved in expropriating non-Aboriginal lands. The Stony Point Reserve comprised over half the Reserve territory of the Chippewas of Kettle & Stony Point. Under the Indian Act, reserve lands can only be sold by Surrender, which involves a vote by the Band membership. The Band members voted against the Surrender, however the Band realized the importance of the war effort and they were willing to lease the land to the Government. The Government rejected the offer to lease. On April 14, 1942, an Order-in-Council authorizing the appropriation of Stony Point was passed under the provisions of the War Measures Act. The military was sent in to forcibly remove the residents of Stony Point. Houses, buildings and the burial ground were bulldozed to establish Camp Ipperwash. By the terms of the Order-in-Council, the Military could use the Reserve lands at Stony Point only until the end of World War II. However, those lands have not yet been returned. The military base was closed in the early 1950’s, and since then the lands have been used for cadet training, weapons training and recreational facilities for military personnel.
After the bombing of Pearl Harbor in 1942, the government passed an Order in Council authorizing the removal of “enemy aliens” within a 100-mile radius of the BC coast. On March 4, 1942 22,000 Japanese Canadians were given 24 hours to pack before being interned. They were first incarcerated in a temporary facility at Hastings Park Race Track in Vancouver. Women, children and older people were sent to internment camps in the Interior. Others were forced into road construction camps. There were also “self-supporting camps”, where 1,161 internees paid to lease farms in a less restrictive environment, although they were still considered “enemy aliens”. Men who complained about separation from their families or violated the curfew were sent to the “prisoner of war” camps in Ontario.
The property of the Japanese Canadians – land, businesses, and other assets – were confiscated by the government and sold, and the proceeds used to pay for their internment. In 1945, the government extended the Order in Council to force the Japanese Canadians to go to Japan and lose their Canadian citizenship, or move to eastern Canada. Even though the war was over, it was illegal for Japanese Canadians to return to Vancouver until 1949. In 1988 Canada apologized for this miscarriage of justice, admitting that the actions of the government were influenced by racial discrimination. The government signed a redress agreement providing a small amount of money compensation.
Could This Happen Today?
The War Measures Act was repealed in 1988. It was replaced with the Emergencies Act. The Emergencies Act allows the federal government to make temporary laws in the event of a serious national emergency. The Emergencies Act differs from the War Measures Act in two important ways:
1. A declaration of an emergency by the Cabinet must be reviewed by Parliament
2. Any temporary laws made under the Act are subject to the Charter of Rights and Freedoms.
Thus any attempt by the government to suspend the civil rights of Canadians, even in an emergency, will be subject to the “reasonable and justified” test under section 1 of the Charter. Restrictions and limitations on freedom were inevitable during times of war. To the Canadian government, internment during both World Wars was a practical solution to a perceived security problem. However the terms of the Orders in Council, and the methods used to carry them out, reveal that the government was influenced more by racial discrimination and anti-immigrant sentiments than by any real threat to national security. The stories of the internees are a reminder of how human rights are vulnerable in situations of crisis.
By Diana Breti
Centre for Education, Law and Society (CELS)
Simon Fraser University
Vancouver, British Columbia
Living through five or six major wars has hardened me to what I thought were the extremes of inhuman cruelty and brutality.
Two things made those extremes almost bearable: the brutality always revealed – at least according to the media coverage – the viciousness of the enemy. It was therefore quite understandable when our “brave men and women” pulverized the enemy.
Films of Japanese torturing captive Americans somehow justified holding over 7,000 Japanese Americans in internment camps during World War II; and only a small percentage of Americans found the bombing of Hiroshima and Nagasaki unreasonably vengeful at best, at worst, depraved.
The media giants in America portrayed the North Koreans as barbaric beasts with their captives, quite unlike their southern counterpoints – our allies during the Korean War. No one ever felt the need to explain how the South Koreans were a civilized breed while the North Koreans were absolute savages, at least according to the official line.
In Vietnam, our warriors justifiably (or so the media made us believe) dropped napalm on the North Vietnamese who had the gall to hide in villages and tunnels to ravage our invaders. At least it was accepted practice until some rogue photojournalist filmed a young girl screaming down a Vietnamese road in flames.
One of our lieutenants also got caught commanding his troops to open fire on an entire village of civilians – women and children. We had obviously – to some – gone too far. If those few torturous incidents hadn’t been filmed, we might have carried on and won the war in Vietnam (or so the thinking goes) with our napalm and wanton village massacres.
Then, when the Iraqi troops ran (literally) fleeing Kuwait in 1991, our bloodthirsty aviators annihilated them on the road north, bombing their retreat to “melted glass” (as one Lockheed acquaintance put it). That feast for hungry slaughterers received little attention. The bombers and strafers felt no guilt after Saddam’s troops had blown up Kuwait’s oil wells.
The nagging memory of non-avenged defeat in Vietnam somehow allowed members of the clergy to ignore the devastating inhuman cost to children in Iraq during 10 years of sanctions. Only a few humanitarians among academics spoke out. Congress completely ignored it. The public didn’t care. Why should they? Our leaders spoke of everything but the brutality of our enforcers.
We have now reached a stage where our extreme horrors of brutality and cruelty have exceeded our past records. We no longer have the rationale of moral righteousness of the earlier wars.
There were no excuses for Abu-Ghraib, but our interest in that inhuman travesty dried up and blew away. We have little concern about our violations of human rights in Guantanamo. We care less about ill-treatment of Arabs and Arab Americans in the USA.
But the most extremes – the real horrors – of this war come with the primitive killer mentality developed in our youth. I’ve now seen a half dozen documentary films and read eyewitness accounts that reveal troops or pilots gloating over the massacres of civilians who just happened to be available targets.
Without doubt, the US has not only become the world’s major power, it has become the world’s sickest warrior state. Neither conscience nor empathy for others defines the qualities of the sociopath.
It’s past time for humanitarians to reject the double standards set by warmongers and supported by arms-makers and the mainstream media. The clergy needs to stop preaching sanctimonious sermons. Finally, educators should adopt and teach a zero tolerance policy for self-righteous warriors.
And yes, those who would dismiss my criticism as vitriolic should join a chorus with a conscience.
Paul J. Balles is a retired American university professor and freelance writer who has lived in the Middle East for many years.
“As Mr. Yakub continued to preach for converts, he told his people that he would make the others work for them. (This promise came to pass.) Naturally, there are always some people around who would like to have others do their work. Those are the ones who fell for Mr. Yakub’s teaching, 100 per cent.” — The Most Honorable Elijah Muhammad, chapter 55 of Message to the Blackman in America titled “The Making of Devil”
“Three blessings a Jewish man is obligated to pray daily: ‘(Blessed art Thou,) Who did not make me a gentile; Who did not make me a woman; and Who did not make me a slave.’” — Babylonian Talmud, Menahot 43b–44a
The story of the Jewish American experience that most Jews want to believe, and want the world to believe, is one of almost endless historical victimhood. They insist that they fled anti-Semitic oppression in Europe, landing safely on Ellis Island long after the Civil War’s end in 1865, and certainly some did. … continue
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