We received this from Appellate Law Whiz Peter Goldberger (Ardmore, PA):

The front page of today's Philadelphia Inquirer features a most interesting story about a petition filed in the Supreme Court to reopen a case, decided 50 years ago next week. In US v Reynolds, 345 U.S. 1 (1953), survivors of three people killed in an Air Force plane crash sued the government. In discovery, they sought access to the report of the Air Force's own investigation into the crash. The government resisted, saying they had a privilege based on military secrecy. The Third Circuit upheld the trial judge's order that the government turn the report over to him to see whether the privilege claim was justified, but the Supreme Court reversed, holding the courts could not even question or examine the military's claim. For lack of this evidence, the case was dismissed.

Recently, a grandaughter of one of the victims discovered a website collection of declassified Air Force accident reports, including the one withheld in 1953. Lo and behold, there was no discussion of any military secrets, but it did show the Air Force had concluded that the plane wasn't safe to fly. In other words, the report had been suppressed to protect the Air Force from embarrassment and liability, not to protect the national security, as the government had falsely claimed to the Supreme Court.

The same big, blue-blood Philadelphia law firm which handled the case 50 years ago, has filed a motion to reopen the case in the Supreme Court on the basis of fraud. We will be interested to see what happens.

Meanwhile, perhaps reading the motion will trigger some skepticism when the Court' examines the Fourth Circuit's recent decision in the Yaser Hamdi habeas case -- which also concluded that the judge could not scrutinize or question a conclusory government affidavit (the "Mobbs declaration") asserting that American citizen Yasser Hamdi (or Jose Padilla) can be labeled an "enemy combatant" and then held incommunicado, without access to counsel, indefinitely without court proceedings.

The Court might also have learned this lesson from the later history of the Korematsu and Hirabayashi travesties of 1943. Those cases upheld the Japanese internment program during WWII, based on affidavits from military officers of Japanese-American saboteurs and secret agents. Those affidavits also were false, and the military's own reports contradicting them were destroyed -- all but one copy, as was revealed years later and discussed in the 9th Cir opinion affirming the grant of Hirabayashi's coram nobis petition: Hirabayashi v. US, 828 F.2d 591 (9th Cir. 1987).

Yet another cautionary tale for our day, we'd say. Who remarked that "In war, truth is the first casualty"? Only a fiercely independent judiciary, prompted by independent defense attorneys, can protect us from law based on lies, maintain civilian control over military power, and keep the win-at-any-cost military mentality, which has nothing but contempt for truth and fairness, from destroying our democracy.

Scotus Blog also reorted on Peter's analysis today.

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