Area 51 exempted from environmental audit by exec orders...

Rohit Khare (
Fri, 23 Jan 1998 14:50:20 -0800

[By way of Donald Eastlake's dee-interest list --RK]

> From: Vladimir Z. Nuri[]
> Sent: Saturday, January 10, 1998 9:57 PM
> 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."

[Trivial comment: the claim in the quote at the end that only the
military can keep things secret is false. Although traditionally the
Defense and State department were the primary sources of original
classification decisions, lots of agencies can do that now, although only
the Secretary of Defense, the Secratry of State, and the Director of the
Central Intelligence Agency can create "special access" programs. See
Executive Order 12958:

- -dee3]