area 51, enviro crime, secrecy==abuse?

["Vladimir Z. Nuri" <vznuri@netcom.com>]

Environment of Secrecy

A lawsuit alleges environmental crimes
at the country's most secret military base    

Amicus Journal, Spring 1997,
a publication of the National 
Resources Defense Council

by Malcom Howard
    
    August, 1994: Standing atop a
    desert ridge in central Nevada,
    Glenn Campbell peers through
    binoculars at a remote duster of
    buildings in the valley below. "It's
    the most famous secret
    militaryfacility in the world," he
    says. The scattering of airplane
    hangars and radar dishes below,
    barely visible through the haze, is a
    secluded Air Force test facility
    known as Area 51-- or, more
    fancifully, "Dreamland"-- that is
    believed to have launched the most
    sophisticated Cold War aircraft,
    from supersonic spy planes to the
    radar-evading Stealth bomber.
    
    Campbell has made a mini-industry 
    of showing off this
    clandestine outpost, built on a
    barren pancake of alkali just inside
    the Air Force's restricted Nellis
    Gunnery Range north of Las Vegas.
    His self-published tour book
    describes how to get a stealthy,
    yet fully legal, view of Area 51.
    Tourists pass electronic sensors on
    the road and watch helicopters
    patrol above, and are tailed by men
    in unmarked white jeeps
    who train high-powered video
    cameras on their every move. Though
    Campbell's tour stays entirely on
    public land, once on the ridge his
    clients stand only yards from the
    Area 51 boundary. Signs
    prohibiting photography and warn
    that "use of deadlyforce" is
    authorized against trespassers.
    
    These days, Glenn Campbell's
    not-for-profit tour business
    has fallen on hard times. In
    1995, the Air Force all but
    shut him down: it seized the
    4,500 acres of public land where
    Campbell's customers used to get
    their best views. The move
    demonstrates just how touchy the Air
    Force is about this military sanctum
    sanctorum-- since, in order to close
    out a few ragtag sightseers, it
    inevitably whipped up a storm of
    speculation among the conspiracy
    buffs, tabloid press, UFO trackers,
    aviation hounds, and government
    accountability activists who are
    fascinated by Dreamland.
    
    One can only imagine, then, the
    consternation in the upper ranks of
    the Air Force when four former Area
    51 employees and widows of two
    others brought their now celebrated
    lawsuit, alleging that the secrecy
    surrounding the site had been used
    to commit and then cover up
    environmental crimes.
    
    "My husband came home one day
    screaming," says Helen Frost, whose
    late husband, Robert, was a sheet-
    metal worker at Area 51. "He was
    screaming, 'My face is on fire.' His
    face was bright red and swollen up
    like a basketball. Then he got three-
    inch scars on his back. A year later,
    he died." In 1990, the year after
    Frost's death, a posthumous worker's
    compensation hearing found that the
    liver disease that killed him stemmed
    from heavy drinking, not toxic
    industrial chemicals. But Helen Frost
    disputes that finding. She points to
    testimony from a Rutgers University
    chemist who found high levels of
    dioxins and dibenzofurans in her
    husband's tissue. Those extremely
    dangerous chemicals, wrote Dr. Peter
    Kahn-- best known for his role in the
    Agent Orange commission-- were
    likely the result of industrial
    exposure.
    
    Helen Frost and her co-plaintiffs
    filed the original lawsuit in 1994,
    alleging that the military and its
    contractors regularly and
    illegally burned huge volumes of toxic
    waste in the desert, exposing workers
    to dangerous fumes. Defense
    contractors from the Los Angeles
    area, they claimed, routinely trucked
    55-gallon drums full of paints and solvents
    into Area 51. Employees would dig
    large trenches, toss in the drums,
    spray on jet fuel, and finally light the
    toxic soup with a flare.
    
    The plaintiffs named the
    Department of Defense, the National
    Security Agency, and the Air Force
    in the suit, charging that they
    allowed the burning in violation of
    the Resource Conservation and
    Recovery Act (RCRA), the nation's
    keystone hazardous waste law. In a
    parallel suit, they charged the
    Environmental Protection Agency
    (EPA) with failing to inspect and
    monitor waste disposal at the facility,
    as RCRA requires. The plaintiffs have
    said that many other Area 51 workers
    are suffering from ailments similar to
    Frost's. They do not seek
    damages-- just information about
    what chemicals they were exposed
    to, help with their medical bills, and
    an end to the burning.
    
    The extreme secrecy shrouding Area
    51 has turned the lawsuit into
    something out of a Cold War spy
    novel, replete with sealed motions,
    confidential hearings, blacked-out
    docket sheets, and classified
    briefings. "We're in the rather
    unenviable position of suing a facility
    that doesn't exist, on behalf of
    workers who don't officially exist,"
    says Jonathan Turley, the George
    Washington University law professor
    who is representing the plaintiffs.
    
    The existence of the workers is
    fairly straightforward: because they
    took secrecy oaths in order to work
    at Dreamland, they fear recrimination
    for going to court, and so the judge
    has allowed them to sue
    anonymously. But the existence of
    Area 51 is more problematic. The
    base is absent from even the most
    detailed defense flight charts. Ask
    the Air Force communications office
    about the facility, and a spokesman
    will read from a script: "There is an
    operating location in the vicinity of
    Groom Dry Lake. Some specific
    activities conducted on the Nellis
    Range both past and present remain
    classified and can't be discussed."
    
    In court, the Air Force tactics
    have been just as convoluted. In the early
    days of the lawsuit, argued before
    U.S. District Court Judge Phillip M.
    Pro, much of the contention centered
    on the Air Force's refusal to name the
    place at issue. The plaintiffs have all
    sworn that they worked at a facility
    called "Area 51," and Turley has
    introduced evidence, such as his
    clients' employee-evaluation forms
    and various government documents,
    that refer to the site as "Area 51." Air
    Force lawyers, however, have said
    that naming the base would
    undermine national security, because
    enemy powers could make valuable
    inferences from any verified names.
    
    In response, the plaintiffs
    accused the Air Force of cynically
    invoking national security in order to
    wriggle out from under the evidence
    that illegal practices were going on at
    a place called "Area 51." After all,
    Turley argued in court, "If the
    defendants confirmed 'Area 51' is
    often used to identify this facility, a
    foreign power would be no more
    educated as to [the facility's] operations than
    their previous knowledge, derived in
    no small part by the defendants' own
    public statements."
    
    But the name of the facility was
    only the first of a barrage of secrecy
    arguments the plaintiffs have faced.
    Throughout pretrial proceedings, Air
    Force lawyers repeatedly invoked the
    military and state secrets privilege, a
    rarely used tenet of common law that
    allows the executive branch to
    withhold information from trial if its
    disclosure might jeopardize U.S.
    soldiers or diplomatic relations. To
    support the claim, Air Force
    Secretary Sheila Widnall submitted
    two afffidavits, one public and one
    for the judge's eyes only, in which
    she argued that any environmental
    review of the facility entered into the
    record could educate foreign powers
    about U.S. military technology.
    "Collection of information regarding
    air, water, and soil is a classic foreign
    intelligence practice because
    analysis of these samples can result
    in the identification of military
    operations and capabilities," Widnall
    wrote.
    
    Turley-- himself a former staff
    member of the National Security
    Agency-- believes that the Air Force
    is improperly using the military
    secrets privilege to hamstring his
    case. Most of the chemicals burned
    at Area 51, he says, were standard
    solvents, paints, and the Like that are
    found at any aircraft production
    facility. If sensitive data did emerge,
    such as traces of the chemicals used
    in the radar-blunting coat of the
    Stealth fighter, they could simply be
    stricken from the record.
    
    Whatever the case, so far the
    tactics of the Air Force have largely
    prevailed. True, the plaintiffs have
    changed the course of environmental
    policy at the base; because of their
    suit, the Justice Department has
    launched a criminal investigation
    into the charges on EPA's behalf,
    and EPA has conducted the first
    hazardous waste inventory of Area
    51.
    
    But that inventory remains off
    limits to the plaintiffs, even though
    RCRA requires EPA to make such
    documents public because Judge Pro
    ruled that the president could grant a
    special exemption for national
    security reasons. RCRA has always
    allowed a president to create this kind
    of exemption; what is unusual about
    this case is that the judge allowed a
    president to do so after allegations of
    environmental crime had already
    emerged. And the exemption was
    duly granted: late in 1995, President
    Clinton signed an executive order
    exempting Area 51 "from any Federal,
    State, interstate or local provision
    respecting ... hazardous waste
    disposal that would require the
    disclosure of classified information 
    ... to any unauthorized person."
    
    In the wake of the president's
    intervention, in the spring of 1996
    Judge Pro dismissed the main case
    against the Pentagon on national
    security grounds. Turley has
    appealed the ruling to the Ninth
    Circuit Court of Appeals. To date,
    the court has not issued a ruling.
    
    In some senses, the lawsuit is
    unique: there is only one Area 51.
    The military has dozens of other
    restricted bases where highly secret
    weapons tests are carried out-- but,
    to the best of any civilian's
    knowledge, all of these sites are
    already listed on EPA's dockets.
    Environmental information about
    standard military bases is freely
    available. In general, says NRDC
    nuclear arms expert Stan Norris, the
    Air Force's behavior in the Area 51
    case is "not representative of the
    Department of Defense. They're not
    naturally secretive in [the
    environmental] area." Compared to
    the environmental traditions of the
    Department of Energy-- which
    opened up information on its nuclear
    weapons production sites only after
    years of public pressure and
    lawsuits-- when it comes to the
    Department, Norris says, 
    "We're awash in information."

    But Turley and other students of
    military secrecy believe that at issue
    in the Area 51 case is a bedrock
    principle. "In the end, this case can
    be boiled down to one question,"
    says Turley  "Can the Department of
    Defense create secret enclaves that
    are essentially removed from all
    civilian laws and responsibilities?"
    
    Borrowed from English common
    law, the military and state secrets
    privilege is as old as the nation itself.
    Ever since Aaron Burr stood trial for
    treason in 1807, the executive branch
    has, from time to time, sought to
    block information in civil and criminal
    trials. In Burr's case, the government
    refused to release letters written by
    one of Thomas Jefferson's generals.
    The defendant swore the
    letters would clear his name, but
    federal lawyers argued that the
    private notes "might contain state
    secrets, which could not be divulged
    without endangering the national
    safety."
    
    The secrecy powers were used
    most heavily during the Cold War,
    when military and intelligence
    agencies sought to hide technology
    from the Soviets and protect
    eavesdropping methods used
    against civilian activists. The
    Dreamland litigation, however, marks
    the first time the military and state
    secrets privilege has been invoked in
    a civil suit over toxic waste. It
    represents a fundamental clash
    between the demands of national
    security, in which stealth is an asset,
    and the right of public scrutiny that
    is at the core of U.S. environmental
    laws.
    
    National security and
    environmental law scholars take a
    keen interest in the case. "It seems to
    me that specific details of weapons
    programs can properly be held
    secret," comments Kate Martin,
    director of the Center for National
    Security Studies, which litigated
    some of the key state secrets cases
    of the 1980s. "The question is, is
    secrecy being used as a way of 
    of avoiding accountability,
    compliance with environmental law,
    or worker-safety standards?"
    
    Others see such speculation as
    both paranoid and naive. "Just
    because the Soviet Union is no
    longer around doesn't mean we don't
    need to keep secrets," says Kathleen
    Buck, former Pentagon general
    counsel for President Reagan. She
    argues that, since President Clinton's
    defense review revealed continued
    threats of ballistic missile attack,
    nuclear proliferation, rogue states,
    and terrorist cells, secrecy is a
    strategic advantage the United States
    still needs.
    
    "But we have to make sure that in
    building up the national defense, we
    don't destroy the very thing we're
    trying to protect," objects Steve
    Dycus, professor of national security
    and environmental law at Vermont
    Law School. A victory for the Pentagon
    over Area 51, he believes, could
    frustrate EPA's efforts to enforce
    environmental laws at sensitive
    military sites-- and the Pentagon,
    with more than a hundred active
    Superfund sites, is considered by
    many to be among America's worst
    polluters. Moreover, a military
    victory could have a chilling effect
    on other military employees who find
    themselves considering the difficult
    act of whistleblowing. After all,
    Dycus notes, RCRA is designed in
    part to enlist the help of citizens and
    states in enforcing environmental
    protection.
    
    While scholars debate policy, the
    employees of Area 51 wait for justice.
    The Air Force denies the charge of
    illegal burning, and Judge Pro
    dismissed the lawsuit without
    deciding on its substantive charges;
    so the plaintiffs have no answers to
    their questions about the painful skin
    disorders they say they suffer from.
    And, unless their appeal to the Ninth
    Circuit is granted, President Clinton's
    exemption precludes them from
    obtaining any information about
    what they might have been exposed
    to.
    
    Ironically, that exemption was
    made public the same day Clinton
    announced that the government
    would compensate victims of nuclear
    radiation experiments. "Our
    greatness is measured not only in
    how we so frequently do right," he
    said, "but also how we act when we
    have done the wrong thing."
    
    Has the United States done the
    wrong thing at Area 51? Without
    some kind of break in the intense
    secrecy that surrounds the place, the
    public has no way of knowing. To
    Glenn Campbell, who has made it his
    life's work to inform Americans about
    Area 51, the existence of this level of
    concealment-- and the lack of
    accountability that comes with it--
    are cause for suspicion. "The military
    is the only governmental branch that
    has the prerogative to keep things
    secret from the public," he says.
    "The problem is, where there's
    excessive secrecy, there's usually
    abuse."