Ex-workers: Judge ignored Area 51 evidence

Rachael Levy

Monday, Oct. 14, 1996 | 11:59 a.m.

A Las Vegas federal judge is accused of ignoring the law and repeatedly ruling against former Area 51 workers in a lawsuit over alleged unlawful burning of toxic waste at the once-secret military base.

The workers charge that U.S. District Judge Philip Pro refused to examine any evidence that would support their allegations and perhaps reveal that the government lied or at least exaggerated its claims of national security.

The workers, who remain anonymous out of fear of government retaliation, blew the whistle on the alleged burning in 1994. The base, also known as Groom Lake, housed the top-secret Stealth fighter and U-2 spy plane. It is about 90 miles north of Las Vegas.

In court papers filed last week with the 9th U.S. Circuit Court of Appeals, the workers contend that the judge's decisions "destroyed the confidence of these workers in the independence and guarantees of the federal District Court."

They are asking the 9th Circuit to remove Pro from the case. Pro did not return a telephone call requesting comment.

The workers allege in their lawsuit that throughout the 1980s the Air Force and its contractors regularly filled 55-gallon drums with toxic waste and dumped them in trenches the size of football fields. The drums were covered with combustible material, doused with jet fuel and set ablaze, the workers allege.

The workers said they became sick from breathing in the fumes and smoke. Some developed a rare and painful skin disorder that resembles a fish-like scale and continually cracks and bleeds.

Two of the workers, Robert Frost and Walter Kasza, died from injuries that their widows say are related to the burning.

But the workers failed to prove the alleged burning when Pro tossed out their lawsuit March 6 on grounds that the issue was a national secret and the suit threatened national security.

The worker's attorney, Jonathan Turley, lays out the reasons for the appeal in a 118-page brief. Among the issues being contested is President Clinton's decision to grant an executive privilege that, Turley said, allows the government to withhold evidence of criminal acts for reasons of national security.

The extent of the president's authority to invoke the privilege over crimes has largely gone untested in court until now, according to court papers. Pro's agreement with the government that the president has the power to extend the executive privilege to alleged criminal activity is unprecedented and "ominous," Turley said.

"The District Court's decision on this question would work a massive and dangerous change in the balance of power within a tripartite system," the lawyer wrote.

Another issue being appealed is the decision to seal a great number of documents in the case. For example, the workers have argued that the continuing decision to keep secret the transcripts of a June 20, 1995, hearing containing "great public interest and no classified content" is an attempt to avoid public scrutiny.

The law permits judges to seal court documents or hearings if the need to protect evidence or testimony outweighs the public's need to know.

Nevada Press Association attorney Kevin Doty said he will join in the workers' appeal of this issue. KLAS Channel 8, which originally sued for public disclosure of the transcript, also is expected to appeal.

The workers contend that the transcript would reveal Pro's refusal to allow the release of information that would prove their allegations that the government lied to the public.

"The only purpose served by this seal was to avoid embarrassment to the government after it made both unprecedented demands on opposing counsel and false public statements," Turley wrote.

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