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Government attorneys misused secrets privilege, motion says

A new motion filed Tuesday in lawsuits by former Groom Lake air base workers against federal environmental, defense and intelligence agencies claims government attorneys improperly used the military secrets privilege as defense in thecases.

"The government in this case has attempted to use the privilege as a jurisdictional challenge to the court to proceed further in pre-trial hearing and discovery," says the 17-page motion filed by Jonathan Turley, director of the Environmental Crimes Project at George Washington University's National Law Center.

"The government's argument fails to recognize that the privilege is an evidentiary rather than a jurisdictional challenge," the motion says.

Typically the privilege is used to challenge evidence on the basis it needs protection for national security reasons. But, at this stage in the Groom Lake cases, no evidence has been presented that could be challenged.

By invoking the privilege at this point, the government's counsel, Justice Department lawyer Richard Sarver, is suggesting that U.S. District Court Judge Philip M. Pro, who is reviewing the cases, doesn't have jurisdiction to hear them.

Pro has scheduled a pre-trial conference for the cases on Thursday.

Sarver deferred his comments to Justice Department spokesman Bert Brandenburg, who said the government was "still digging" for its reasons for wanting to use national security as a defense in pre-trial proceedings.

Turley represents Helen Frost, a Las Vegas widow of one former Groom Lake worker, and at least six other former workers at the secret air base, 35 miles west of Alamo in Lincoln County.

The former workers, who the court has allowed to use fictitious names, claim they were injured from toxic chemicals that were burned at the base during the 1980s in defiance of environmental laws that prohibit open-pit burning of hazardous wastes.

In his latest motion, Turley notes another odd twist in what is referred to in court papers as "the Air Force case." In that case, Sarver answered Turley's complaint Oct. 19 without ever having been served the official version of it.

Brandenburg explained the government's position, saying, "people proceeded here as it was in due order and therefore put the answer forward."

In answering both complaints, Turley said, Sarver improperly invoked the military and state secrets privilege in the pre-trial proceedings.

"The government cannot raise an affirmative defense which relies on the privilege as a basis of dismissal," Turley's latest motion says, asking the court to strike the two affirmative defenses.

The wording of the government's answers is also inconsistent, saying in one case that the privilege is needed because the information that would be discussed may jeopardize national security, while in the other case the government says the information will jeopardize national security.

"Allowing the government to make a jurisdictional challenge by invoking the privilege would establish a new and troubling precedent for future courts in cases against the military," the Turley motion says.

The case described in court papers as "the EPA case," was filed Aug. 2 in U.S. District Court in the District of Columbia. It names U.S. Environmental Protection Agency Administrator Carol Browner as defendant for allegedly failing to inspect the base for compliance with the Resource Conservation and Recovery Act.

The other lawsuit, "the Air Force case," filed Aug. 15 in U.S. District Court in Las Vegas, names as defendants Defense Secretary William Perry, National Security Adviser Anthony Lake, and Air Force Secretary Sheila Widnall. It claims these officials used secrecy to hide hazardous waste violations.