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."