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XLIX

anti -vice and venereal disease eradication campaigns aimed at protecting the
health of soldiers and sailors who visited on leave or were stationed in the cities.
Holloway contends that another key contribution of her study is its ability to
shed light on "how African Americans and lower class whites experienced the dis-

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cipline of a state that denied them the franchise" (2). Her book is less successful in
this respect, however. Ultimately, readers get little sense of how these populations
actually experienced regulation. We get even less on the ways they defied it.
Holloway provides tantalizing glimpses of opposition and even moments of suc-
cessful resistance but leaves them undeveloped, in part because of her emphasis
on the vote as the most viable means of checking state authority. As historical
subjects, Virginia's poor, sterilized, imprisoned, and most men and women of
color remain groups who are acted upon, regulated and oppressed, and spoken of
but who are rarely allowed to act or speak for themselves. In her effort to impress
upon readers the gravity of sexual regulation and social control, Holloway runs
the risk of replicating in her analysis the very hierarchies and exclusions she
details so well elsewhere.
Sexuality, Politics, and Social Control in Virginia, 1920-1945, is an impor-
tant book and an invaluable resource for scholars of American legislative and
legal history, sexual politics, and southern history. Holloway has also given us a
critical historical lens through which to consider pressing contemporary issues of
sexual regulation, such as gay marriage and abortion, in the contexts of the coa-
lescing of laissez-faire economic policies and calls for "small government" with
increased surveillance and the Homeland Security state.

MICKI McELYA
University ofAlabama

FISHER, LOUIS. In the Name of National Security: Unchecked Presidential

Power and the Reynolds Case. Lawrence: University Press of Kansas, 2006.
xiii, 282 pp. $34.95 (cloth).

Louis Fisher's latest book is a fascinating review of the history, facts, and
law that led to the state secrets privilege. It will no doubt be enthusiastically
embraced and accepted as gospel by readers, including anti-government critics
and many in academia. This is especially true because Fisher is a well-respected
constitutional law scholar.
The problem is that constitutional scholars are apparently no different from
the rest of us. They apparently break either left or right on an issue, as psycholo-
gist John Jost has recently written, based on their inborn personality traits and
genes. 1 Fisher's book demonstrates that he breaks hard left. He is one of those
who see government as an endless series of mini-Watergate conspiracies perpe-
trated by deceitful bureaucrats. His general philosophy is reflected in the current
rant: "Bush lied and people died." Adapted for this book, the charge would be
stated as: "Military officers, Department of Defense officials, and Department of
Justice lawyers all lied to deny $55,000 in additional compensation to deserving
widows and establish an abstract legal principle."
Before proceeding, this writer must disclose that he has served at length in

1. Melinda Wenner, "Political Preference is Half Genetic," LiveScience, May 24, 2007, http://www.
livescience.comlstrangenews/070524_ideological_leaning.html.
2007 BOOK REVIEWS 115

government and been continuously involved in sensitive decision-making. The

vast majority of government employees are moral, ethical, and dedicated. Many
who work outside the process do not seem to understand this culture. This does
not mean, of course, that huge mistakes are not made by government. They are,

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but they are almost always the result of misinformation, negligence, occasional
incompetence, or, most frequently, bureaucratic entanglement, inefficiency, and
confusion. Deliberate lies similar to those alleged by Fisher, especially in a post-
Watergate world in which every government agency has its own ethics watchdog
ready to pounce on wayward employees and every formal pronouncement is
reviewed by layers of supervisors, at least one of whom certainly must have some
ethics, are quite rare.
Despite the catchy title, Fisher's book has very little to do with the exercise
of presidential power, unchecked or otherwise. The book, rather, involves a B-29
bomber accident over Georgia in 1952 that was caused by an unfortunate propen-
sity of the aircraft's engines to catch fire. The accident may have been avoided if
certain engine modifications had been made. Some of the widows of the nine peo-
ple who died in the crash sued the Air Force. The USAF volunteered to make the
surviving crew and other officials available for depositions and interviews but
refused to give up the official accident report because it disclosed "national securi-
ty" matters. The government's position was upheld by the Supreme Court in 1953
in United States v. Reynolds. This decision established the principle that the gov-
ernment need not disclose state secrets when it has been sued if the government
official in charge of the relevant department personally certifies to the court that
the information is highly sensitive and will affect national security. The court
must review the matter to determine if from all the circumstances the claim is
appropriate, without necessarily attempting to judicially determine the proper clas-
sification or disclosing the information that is designed to be protected.
In 2000 the official accident report was found online. It noted the exact cause
of the crash and only generally referred to the fact that the plane was on a secret
mission testing electronic and radar equipment. In the view of Fisher and the
plaintiff s attorneys, these facts conclusively demonstrate that the USAF officials
and government lawyers "lied" (Fisher uses the word and its variations repeated-
ly) when they stated that the report would reveal national security matters. In the
opinion of Fisher and the plaintiff's attorneys, the officials were attempting to
deprive the survivors of just compensation by these lies (never mind that they set-
tled for $170,000 on a potential $225,000 claim) and establish the state secrets
privilege while doing so. Fisher and the plaintiff's attorneys, however, seem inca-
pable of acknowledging the obvious: in 1952 the USAF certainly had very good
national security reasons not to make publicly available to the USSR the facts that
a) B-29s were being utilized in sensitive radar and electronics experiments; b) B-
29 engines had potentially serious mechanical problems; and c) those engine prob-
lems could be minimized by certain technical modifications. This was in part
because the Soviets had exactly copied B-29s eight years before and were current-
ly flying them as their TU-4 long-range bomber. What is insignificant to Fisher
today would certainly have been of great interest to a Soviet spy fifty years ago.
This is why, despite Fisher's claims, the federal district and appellate courts that
in 2004 revisited the original claim of privilege in the Reynolds case found no evi-
dence that government officials had deliberately misrepresented the truth when
they maintained that the accident report should not be disclosed for national secu-
rity reasons.
Fisher's proposed cure for alleged government deceit masked by the common
116 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XLIX

law state secrets privilege is to have the judiciary examine all secret facts and
make an independent determination whether they should be disclosed. This defi-
nitely has surface appeal. After all, it is essentially what happens in criminal cases
under the Classified Information Procedures Act of 1980. The difference, howev-

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er, is that when the government brings a lawsuit, whether a criminal case or a civil
one, it must expect that it may have to give up its secrets. But when the govern-
ment is sued, it should have no such burden, especially as the litigation could be
utilized or manipulated as a disguised form of intelligence collection. Moreover,
as Chief Justice Warren Burger noted in 1985 in CIA v. Sims, disclosure decisions
"often require complex political, historical, and psychological judgments....
There is no reason ... to have great confidence in the ability of judges to make
those judgments correctly .... The decisions of the [principal official], who must
of course be familiar with 'the whole picture,' as judges are not, are worthy of
great deference given the magnitude of the national security interests and potential
risks at stake" (471 U.S. 159, 176-79).
It is for this very logical reason that the state secrets privilege has endured.

RON SIEVERT*
University of Texas School of Law

*The opinions reflected in this article are the author's personal opinions and do not necessarily reflect
the position of the U.S. government or any government agency.