High court won't review "state secrets" privilege in 'Area 51' case

WASHINGTON, D.C.–The U.S. Supreme Court refused in early November to hear an appeal of a lawsuit by workers at a “secret” air base near Groom Lake, Nev., dubbed “Area 51.”

The federal government, which repeatedly refused to acknowledge the existence of the facility, had successfully invoked a little-used “state secrets privilege” to block the workers from gathering evidence or obtaining a trial on claims that they were poisoned by the open burning of hazardous wastes at the site.

The late Wally Kasza, a sheet metal worker at Area 51, together with other workers at the site began working with the Environmental Law Advocacy Center at George Washington University in Washington, D.C., in 1994, hoping to learn what chemicals they had been exposed to so they could get appropriate medical attention, especially for painful scaly and bleeding skin lesions they were experiencing.

After Kasza died of cancer, his widow filed suit, as did the widow of another sheet metal worker, Robert “Frostie” Frost, who had died in 1990 of a liver disease associated with exposure to smoke containing chemicals. They asked the court to enjoin further environmental abuses. Five other workers joined the suit in federal District Court in Las Vegas, which ruled for the government in March 1996.

The high court’s rejection of the case lets stand a ruling in January by the U.S. Court of Appeals in San Francisco (9th Cir.) that the Air Force could invoke the common law state secrets privilege to protect military secrets at Area 51, and that once invoked, the privilege is absolute, protecting even innocuous-seeming information from disclosure.

The appeals court had also approved use of a Presidential exemption to disclosure requirements of the Resource Conservation and Recovery Act, a law which generally requires government agencies to reveal environmental hazards. The Air Force allowed the Environmental Protection Agency to inspect the site after the lawsuit was filed, but President Clinton then exempted it from any legal requirement that might disclose classified information.

Judge Wallace Tashima concurred in the result, relying solely on the conservation law’s Presidential exemption. He said the exemption preempts use of the state secrets privilege. He noted that the law is more narrow than the privilege. It allows only the President to invoke the exemption, and it requires him to notify Congress when he invokes it and to renew use of the exemption yearly.

The workers and widows said that throughout the 1980s the Air Force and its contractors regularly filled 55-gallon drums with toxic wastes, emptied them into football-field size trenches, doused them with jet-fuel and burned them.

They claimed that the U.S. Air Force generated and mishandled hazardous substances, and that the Environmental Protection Agency failed to take necessary action to enforce the requirements of the resource conservation act against the Air Force. (Kasza v. Browner; Plaintiffs’ Attorney: Jonathan Turley, Washington, D.C.)