Air Force secrecy upheld

By Bob Egelko
Associated Press

      SAN FRANCISCO -- An attempt to pry loose information about allegations of toxic waste burning at a secret Air Force site in the desert -- said to be the "Area 51" of extraterrestrial lore -- hit a stone wall of secrecy in a federal appeals court Thursday.
      The lawyer for five current and former workers at the base, and the widows of two workers killed allegedly by toxic wastes, are not entitled to learn whether hazardous substances exist there or how they are handled, the results of a federal inspection or even the name of the base, the 9th U.S. Circuit Court of Appeals said.
      The 3-0 ruling upheld the Air Force's claim that giving out that information could endanger national security and a 1995 order by President Clinton further restricting disclosure. Before arguments in the litigation in November, the judges reviewed confidential government statements, while Air Force security officers guarded their conference room.
      Besides the classified statements, the court cited an unclassified filing by Air Force Secretary Sheila Widnall, who said information about certain chemicals in the soil or water "can reveal military operational capabilities or the nature and scope of classified operations."
      The court, in an opinion by Judge Pamela Rymer, said the disclosure of even "seemingly innocuous information" can be barred if it is part of a "mosaic" of classified information.
      "The court cannot order the government to disentangle this information from other classified information," Rymer said. She said the court was convinced not only that the information was properly withheld, but also that "any further proceeding in this matter would jeopardize national security."
      Jonathan Turley, a George Washington University law professor who represents the workers, said the ruling "sets an extremely dangerous precedent" for cases alleging government abuse.
      The litigation "has nothing to do with national security," he said. "I obviously know what happened at Area 51. My (clients) worked at Area 51. ... This (litigation) has to do with criminal violations" of hazardous-waste laws.
      He said he would seek a rehearing from the entire court and, if unsuccessful, appeal to the Supreme Court.
      But Turley said the lawsuit has also accomplished an important goal: forcing the government to acknowledge the site and conduct a hazardous-materials inspection, although results of the inspection were not made public.
      "We are relieved that the court left intact the victory in the Kasza case, establishing new precedent for classified facilities under environmental law," Turley said, referring to one of two cases the workers filed against the government.
      "The government fought hard to reverse that ruling on appeal to return Area 51 to its prior 'black' facility status. Due to this case, the government can no longer create facilities that do not legally exist or facilities that have some special immunity to federal law. The government was forced to confirm the existence of the facility, identify the facility, inspect the facility, inventory the facility and ultimately receive a personal presidential exemption from releasing information relating to the facility."
      Area 51, about 90 miles north of Las Vegas, is a base where military aircraft such as the U-2 and Stealth fighter were tested. Its secrecy and remoteness have been prime fodder for UFO buffs, who link the site to the supposed crash of an alien spacecraft at Roswell, N.M.
      In the current litigation, the government identified the site in question as "the operating location near Groom Lake" and denied it was Area 51. The court left the denial unchallenged after reviewing classified material.
      Turley scoffed at the denial, saying the name was verified in a government security manual as well as in declarations from workers and security officials.
      The lawsuits said employees at the base routinely put hazardous chemicals in open 55-gallon drums and burned them. The lawsuits said the exposure killed two workers, Walter Kasza, 73, and Robert Frost, 57, whose widows Turley represents, and injured the other plaintiffs.
      Turley said Frost, before his death, lost a workers' compensation claim for his injuries, and Kasza never filed one. The workers sought no damages but requested a court finding that the Air Force stored toxic wastes without a permit, and orders forbidding transportation and burning of the wastes.
      U.S. District Judge Philip Pro denied the requests but ruled that the results of an Environmental Protection Agency inspection of the site, conducted in response to the litigation, would have to be made public unless Clinton intervened. The president barred disclosure under a law that lets him exempt any federal facility from requirements of a federal toxic cleanup law.
      The government appealed Pro's ruling, saying the report should have been declared secret under national security without the president's intervention, which must be renewed annually. The court declined to decide the issue, saying it was no longer a live controversy because of Clinton's action.
      Rymer's opinion denying disclosure and ordering dismissal of the lawsuit was joined by Judge Harlington Wood of the 7th U.S. Circuit Court of Appeals, temporarily assigned to the panel. In a separate opinion, Judge A. Wallace Tashima said the use of the military and states secrets privilege by the government was improper and agreed with the workers' contention that the privilege was pre-empted by federal law.
      The appeals court instructed the lower court to reconsider the issue of attorneys fees for the workers. The court also agreed with the workers that Pro should reconsider their request to unseal information that relates to threats made by the government against them and their attorney.