Tuesday, April 15, 2003
Copyright © Las Vegas Review-Journal

THREE-JUDGE PANEL: Government wins ruling over Area 51

Lawsuit urges release of data to support claims workers were harmed by materials at facility

A three-judge panel has determined the Justice Department did not abuse national security when information was struck from court documents in two 1994 cases about the secret Air Force facility in Nevada known as Area 51.

The installation along the dry Groom Lake bed, 90 miles north of Las Vegas, is widely known as the facility where high-tech U.S. aircraft are tested against foreign radar systems. Since lawsuits were filed by workers claiming they were injured by exposure to materials at the facility, presidential disclaimers have been issued keeping the facility shrouded in secrecy.

Last year, the Review-Journal intervened in the case, asking the 9th U.S. Circuit Court of Appeals to decide whether the Justice Department abused the state secrets privilege when it convinced U.S. District Judge Philip Pro to allow redactions in previously sealed court documents.

In reacting to Monday's opinion by the panel of judges, attorney Roger Myers, who represents the Review-Journal, said he was disappointed the panel deferred to District Court "on an important constitutional issue like the public's First Amendment right of access."

"We think the law is clear. The court should not have deferred, but should have looked at the redactions themselves to determine whether they applied with the law. If the Court of Appeals had done so, we are confident the court would have reached a different result," Myers said in a telephone interview from San Francisco.

Judge Pamela Rymer, who wrote the unanimous opinion, also maintained that plaintiffs in the Helen Frost case -- named after the widow who claimed her husband, Robert Frost, died from inhaling toxic fumes while working at the facility -- did not prevail and therefore the government is not responsible for paying attorney fees.

Jonathan Turley, the George Washington University law professor who represents Frost, another widow, Stella Kasza, and former workers at the installation, said he will appeal.

"We are considering an appeal to the entire court and we may also decide to take the matter directly to the Supreme Court," he said Monday. Turley said the three-judge panel from the 9th Circuit Court, based in San Francisco, erred in its finding on the Frost case and in allowing the redacted court record to stand.

"There is no question in my mind these workers will live to see the day when the federal government is forced to admit what it did at Area 51. They have been up against far worse odds than a three-judge panel," Turley said.

Judge Harlington Wood, who concurred with Rymer, wrote that he watched a documentary about Area 51, which he said is pertinent even though the information in the History Channel video has not been confirmed or denied by the government.

"I write separately to urge the government, now that these cases are concluded, to strongly consider releasing any information possible which might aid plaintiffs," Wood wrote.