Area 51 saga heads to federal court

Monday, Nov. 3, 1997 | 10:57 a.m.

Workers say there were fatalities and serious injuries from exposure to hazardous waste at a top-secret military facility in Southern Nevada.

The government resists acknowledging the installation even exists. An attorney's office is sealed from the public. A sitting president invokes executive privilege to suppress evidence.

The continuing saga involving Area 51, the secret Air Force facility on Groom Dry Lake near the Nevada Test Site, moves to San Francisco Wednesday. That's where the 9th U.S. Circuit Court of Appeals will review rulings by U.S. District Judge Philip Pro of Las Vegas.

Justice Department attorney James Morgulec, who works in the environmental crimes section in Washington, D.C., is keeping mum about the upcoming hearings.

"Unfortunately, being at the Justice Department, my hands are tied," Morgulec said. "I'm not telling you that because I'm being muscled, but we don't typically comment before oral arguments. There are national security issues involved, which makes it more difficult to comment."

But attorney Jonathan Turley, whose plaintiff clients remain nameless to protect their identities, happily embraces the media. He directs the Environmental Law Advocacy Center at George Washington University in the nation's capital.

It was his campus office that was sealed by federal authorities because they say he possesses classified documents. Turley also said he has been threatened with possible prosecution for alleged violations of national security.

"The stakes are quite high in this case," Turley said. "Certainly the stakes are quite high for President Clinton and his administration."

Turley has an ally in former Interior Secretary Stewart Udall, who worked under Presidents John Kennedy and Lyndon Johnson. Udall, now a lawyer in Santa Fe, N.M., speculated that his two former bosses wouldn't have invoked the national security argument as Clinton has done because the Cold War is over.

"With the Cold War a thing of the past it would seem the government and the Pentagon would be more open," Udall said. "They have a bad record, and one would think in this day and age they would be more forthcoming and not make the same moth-eaten arguments."

Area 51, about 125 miles north of Las Vegas, was established by the CIA in the 1950s. Spy planes, Stealth fighters and other secret elements of America's military firepower reportedly have been tested there. But to hear it from the plaintiffs, they paid a heavy personal price.

They alleged that hazardous and toxic waste was burned at the facility throughout the 1980s while workers were denied protective clothing. They say the waste was placed in 55-gallon drums that were dumped in open trenches, covered with combustible material, and set afire with the help of jet fuel.

The plaintiffs charged that the exposure killed former sheet-metal workers Walter Kasza at age 73 and Robert Frost at age 57, both of whom left widows in Las Vegas. Others say the exposure damaged their skin.

"The workers have said specifically they're not asking for money," Turley said. "All they want is that the truth be known, and the government be held accountable for criminal activity."

The government, meanwhile, has said little beyond its argument that it won't compromise national security.

Turley said the appellate review will concentrate on three major areas:

* Whether the government can use national security as the reason to refuse to acknowledge the existence of hazardous waste at Area 51. Turley argues that illegal disposal of hazardous waste is an environmental crime that must be prosecuted, even on a base involving national security. Pro sided with the government argument that the release of any details could pose a national security threat.

* Whether the U.S. Environmental Protection Agency ought to give the plaintiffs a copy of its 1995 inspection and inventory report of Area 51. Turley won a ruling from Pro to force inspection of Area 51 under a law that compels the agency to monitor all federal installations. The attorney says his clients have a right to the report, but the government refuses to comply.

* Whether the government may ask former Area 51 employees to determine who among them is represented by a lawyer and whether that attorney is Turley. He complains such interviews would be tantamount to exposing whistleblowers. Pro ruled in the government's favor, but that decision was temporarily overruled by the appellate court.

Most disturbing to Turley is Clinton's involvement in the case. The president, according to Turley, is the first ever to use executive privilege to withhold evidence of alleged crimes. Clinton cites national security as his reason.

"If the president can claim executive privilege for crimes he can't commit, he's creating a government unto himself," Turley said. "Bill Clinton is less of an environmental president than George Bush was."

Turley said that during the Watergate scandal then-President Richard Nixon used executive privilege to withhold the infamous secret Oval Office tapes because he believed the taping wasn't illegal.

During the Iran-Contra affair then-President Ronald Reagan conceded he couldn't use executive privilege to suppress possible criminal evidence, Turley said. But the attorney said Clinton has known since at least 1995 about illegal toxic waste disposal at Area 51.

"If any hazardous waste was stored or treated at Area 51, that would be a crime because there is no permit for it," Turley said. "We have witnesses prepared to say there was tons of hazardous waste at the facility and that it was burned. The government won't even admit or deny hazardous waste, even as a generic term.

"If they admit the presence of hazardous waste, that means they were concealing a crime. That means the president is withholding evidence that he knew was criminal evidence that might have killed two people."

From a legal standpoint, Udall has been a trailblazer in the fight against the government's national security argument. Going back 20 years, he has represented numerous workers who fell ill or died, allegedly from radiation exposure to toxic wastes created by federal installations.

His clients have included Nevada Test Site workers, uranium miners and residents of Nevada and Utah who were exposed to atomic bomb testing. He didn't win any of those cases, but Udall hasn't given up.

In 1994, he published "The Myths of August," a book that sought to dispel government-backed notions about the atomic bomb with chapters such as "Big Lies of Bomb Testers."

"They not only lied to the American people vigorously over the years, the government hid behind the screen of national security," Udall said. "That screen is pretty tattered."

Udall doesn't buy the argument that even the slightest revelation about materials at Area 51 would give a foreign power such as Libya or North Korea an opportunity to breech security.

"I know the Pentagon is saying there are state enemies out there but how does it relate to this (Area 51) project?" Udall said. "They don't even give us a hint about what the secrets are. Who are we afraid of?"

If Turley can prove the government engaged in criminal activity, he said it could lead to prosecution of officials in the executive branch.

"There's a law that says you cannot use national security for legally tactical purposes," he said. "They can't use national security simply because admitting a fact would put them in hot water."

Turley conceded the government is virtually impossible to defeat in court when issues hinge on national security. He's already prepared to appeal to the U.S. Supreme Court if he loses in San Francisco. But Turley said he thinks the high court, which is stacked with conservatives, would be sympathetic.

"Conservatives are naturally inclined to make sure individuals are protected from government excess," he said. "These workers did not take this step to go quietly into the night. These workers put themselves at significant risk by coming forward."

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