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."
