COURT: SECRECY IS NO EXCUSE

[Lenny Siegel <lsiegel@igc.org>]

The following is taken from a September 5, 1995 press release from 
the George Washington University National Law Center:

COURT RULES AGAINST MILITARY IN "AREA 51" SUIT AND 
FINDS THAT THE "JOHN DOE" WORKERS HAVE BEEN 
SUCCESSFUL IN ENFORCING HAZARDOUS WASTE LAWS 
AT THE SECRET NEVADA BASE

 Today, the parties in the Area 51 case were formally notified 
that the federal court had denied the government's motion to dismiss 
the action on grounds of national security. In a thirty-page opinion, 
Judge Philip Pro ruled that the national security argument of the 
government was "illusory" and "unpersuasive." Judge Pro, who was 
appointed by President Reagan in 1982, gave the military until 
October 2, 1995, to declassify the information demanded by Plaintiffs 
or secure a personal exemption from President Clinton, which would 
be the first of its kind under this provision. In response to the ruling, 
Plaintiff's Counsel Jonathan Turley stated:

"This decision resolves the core question underlying the litigation: The 
obligations of the military under environmental laws at all bases, 
including its most secret "black" facilities. If the military's most 
classified facility is subject to these laws, all federal facilities will need 
to comply with environmental laws. Despite determined opposition 
from the Justice Department, the court found that national security 
claims do not trump the environmental statutes and that the military 
cannot operate facilities outside the law.

"The military discovered today that its stealth capabilities do not 
extend into federal court. The crimes committed at Groom Lake will 
become all too apparent in the coming weeks as we explore the 
ramifications of today's decision."

 Professor Jonathan Turley, a George Washington University 
law professor and Director of the Environmental Crimes Project, 
represents workers at a secret Air Force base in two cases charging 
that the military has committed environmental crimes at the base. 
Represented anonymously as "John Does," these workers allege that 
the military burned hazardous wastes in open pits and knowingly 
exposed workers to the burning. Various workers have died of cancer 
and other workers have become ill from a variety of complications, 
including a rare painful skin disease linked to the burning of 
hazardous wastes. The Project on Government Oversight, a national 
watch dog group, has assisted in the investigation of these crimes.

 Since the Court also ruled that the military has met two other 
demands in the action, the Court's decision means that the entire 
complaint against the EPA will have to be satisfied before the case is 
terminated. Judge Pro rules that two claims in the complaint have now 
been satisfied by the military after completion of a formal inspection 
and inventory of the "black" facility. Despite their initial refusal to 
admit that the facility existed, the military relented during litigation and 
admitted the existence of the "black" facility and agreed to bring the 
facility into compliance by allowing EPA to inspect and take inventory 
of hazardous wastes at the site. While the Court called the Justice 
Department's argument on these matters to be "somewhat dubious," 
the Court allowed those counts to be closed. "Simply put," Judge Pro 
noted, "Plaintiffs' objective in bringing [these claims] have been 
accomplished."

 Moving quickly to capitalize on this groundbreaking ruling, 
Plaintiffs have prepared an amended complaint in the second case 
against the military. Not only does the decision prevent the 
government from terminating the EPA action, but the decision also 
strengthens similar claims against the military. The new complaint 
against the military will include information confirmed in discovery 
that shows knowledge of possible criminal violations at the base. The 
expanded complaint will be filed tomorrow [September 6] in Las 
Vegas, Nevada.

 For the moment, the military will need to decide whether to 
declassify the reports from the base or seek an unprecedented 
exemption. Previously, the Justice Department insisted that the 
government has authority outside the statute to exempt information 
from public disclosure. In arguments before the Court, Colonel 
Richard Sarver stated that any argument that an exemption from the 
President is required "is flatly wrong" and would run afoul of the 
President's constitutional authority as Command and chief. The 
decision would potentially require the President to name all "black" 
facilities on either the federal compliance list or the noncompliance list 
of Presidential exemptions.

 Professor Turley and his clients were hopeful for a new 
attitude toward compliance: "I hope that the military will view this as 
more of an opportunity than a defeat. Compliance with federal law can 
bring untold benefits and a real sense of citizenship."

 Another issue remains unresolved. Last month, the 
government declared papers contained in Professor Turley's office to 
be top secret. In on-going sealed briefings, the parties continue to 
fight over these documents and Professor Turley's refusal to turn 
them over to the government. Professor Turley argues that such 
material would reveal the identities of his clients and sources, who 
have been threatened by the military in the past.

 For additional information, Professor Turley can be reached 
directly at 202/994-7001 or through Ms. Nora Kelley at University 
Relations at 202/994-6460.