1994 LAWSUIT APPEAL: Judges hear arguments over Area 51 data

Workers want information about chemicals burned at base

By SEAN WHALEY
REVIEW-JOURNAL CAPITAL BUREAU

SAN FRANCISCO -- The U.S. government is abusing its secrecy powers to prevent the release of embarrassing information about a top secret Nevada air base, attorneys for the Review-Journal and Area 51 workers told a federal appeals court Friday.

Roger Myers, representing the newspaper, and Jonathan Turley, representing two widows and five current and former workers who say they were injured when they inhaled toxic chemicals burned at the base, asked the 9th U.S. Circuit Court of Appeals to review and release court information that has been kept secret on grounds that it could hurt national security.

"For these workers, their injury by the government was not just what happened at Area 51," Turley said after the 45-minute hearing. "Their injury was what happened after, when the government came into court and lied about facts relating to its conduct and facts in the record. We're all very committed to continuing this as long as it takes."

A three-judge panel heard the arguments, as well as those against motions by Ronald Spritzer of the Department of Justice, representing the federal government. A ruling will be issued later.

"My clients want the court to correct the abuse of national security," Turley said.

The documents at issue were filed in a 1994 lawsuit brought by Turley, a George Washington University law professor, on behalf of the unidentified injured workers and the late husbands of Helen Frost and Stella Kasza. The lawsuit was filed in U.S. District Court in Las Vegas.

Turley sued federal defense, environmental and intelligence agencies, alleging the plaintiffs were harmed by inhaling toxic chemicals burned at the base in the 1980s. The base violated environmental laws that prohibit open-pit burning of hazardous wastes, the lawsuit claims.

The same 9th Circuit panel ruled in January 1998 that Turley's clients were not entitled to learn what hazardous substances were used at the base or how they were disposed of. The U.S. Supreme Court in November 1998 refused to hear an appeal of the ruling sought by Turley, in effect upholding the lower court decision.

The merits of Turley's lawsuit have not been heard in court, but the 9th Circuit panel ordered U.S. District Judge Philip Pro of Las Vegas to review and release documents that did not violate national security concerns.

Myers and Turley argued Friday that too much information unrelated to national security concerns remains hidden from the former workers and the public. Turley told the judges he can cite numerous examples where information is withheld in one court document but not another.

Judge A. Wallace Tashima told Spritzer the federal government originally wanted the entire court record in the cases sealed. Tashima said it was "a ridiculous request."

Now the government is arguing the information kept sealed must remain that way. "I'm skeptical," Tashima said.

Judge Harlington Wood of the 7th U.S. Circuit Court of Appeals asked Spritzer how the public could be sure the blacked out, or redacted, information was classified.

When challenged by Tashima, Spritzer cited the panel's own decision rejecting the Area 51 workers case. In that ruling, Judge Pamela Rymer, the third member of the panel, said even seemingly innocuous information can be kept from disclosure if it is part of a "mosaic" of classified data.

Rymer said redaction of a statement in one document and not another does not mean the government erred. "Context matters," Rymer said.

Other than acknowledging the existence of a classified installation, the government argues that presidential orders keep secret all information about what is commonly known as Area 51, which is 90 miles north of Las Vegas in the dry Groom Lake bed.

Much of the argument focused on an Air Force base manual the government considers classified. The manual can be downloaded off the Internet, Turley said. Most of the redacted information relates to the manual; if the appeals court determines the document is not classified, the entire case file should be made public, he said.

If the government is successful in keeping much of this case record sealed, it will see it as a sign it can do the same in other matters, Turley said.

"If the court upholds what the government did in this case, there would be no operating standard and there would be no limitation," he said. "If the government can redact unclassified material, even public statements made by journalists in national papers, then there is no limit to the government's ability to conceal embarrassing or wrongful conduct."

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