Desert Battle

By MARGARET A. JACOBS
Thursday, February 8, 1996
Staff Reporter of The Wall Street Journal

LAS VEGAS -- One day two years before he died, Helen Frost says, her
husband, Robert, returned from his sheet-metal job at a top-secret
Air Force base with flaming-red skin that soon began peeling off his
face.

''He was a pretty tough guy, but he burst through the door yelling in
fear,'' she recalls. ''Every hour, I'd have to take a washcloth'' and
take off some more skin.

Mrs. Frost is one of two widows who, along with four former civilian
workers, are suing the Defense Department in a so-called citizen's
lawsuit (rather than a claim for tort damages). They contend that it
violated federal hazardous-waste law by repeatedly burning ordinary
chemicals and highly toxic classified materials in open pits at the
base, which is located 125 miles northwest of Las Vegas and is
commonly called Area 51.

The workers, who say their exposure to toxic fumes throughout the
1980s caused health problems ranging from skin lesions to cancer, are
seeking information to facilitate medical treatment and help with
medical bills but no other monetary damages. As employees of
government subcontractors, which aren't named in the lawsuit, some of
the plaintiffs say they have no medical insurance. They also want a
court order requiring the government to follow the law and dispose of
such waste safely. They themselves can't bring criminal charges.

So far, the government refuses to confirm or deny their allegations
or to respond to their request for criminal prosecution. Instead, it
asked U.S. District Judge Philip Pro, who is overseeing the case in
Las Vegas, to dismiss the lawsuit, arguing that almost any disclosure
about Area 51 could pose a ''serious risk'' to national security.

Unusual Maneuver:

That strategy is startling because the government apparently has
never before invoked the so-called national-security privilege in a
case in which the effect is to shield itself from criminal liability.
The privilege is intended to prevent courtroom disclosures of state
secrets involving intelligence gathering or military planning. But
the burning alleged by the workers is a serious crime, punishable by
up to 15 years in prison and a $1 million fine. Indeed, the Justice
Department has made the prosecution of
civilians who illegally burn hazardous waste a priority.

Constitutional experts say the case could ultimately go to the
Supreme Court because it tests the limits of executive-branch power.
In a case involving Richard Nixon and Watergate, the high court said
the president can't use executive privilege to shield evidence of a
crime. But in response to the workers' suit, the government in effect
argues that the national-security privilege -- a form of executive
privilege -- gives the military more leeway than the president has to
keep information secret,
even if it involves a crime.

The case is also significant because it could determine whether the
military will be held accountable for what many observers consider
its dismal record of compliance with environmental laws. A government
task force estimated in 1995 that cleaning up hazardous waste at
federal acilities, mostly military-related, would cost $234 billion
to $389 billion.

Information at Risk:

''What I fear is the broadening of a principle that could block
access to a whole range of information that should be available to
the public,'' says Stephen Dycus, an expert on national security and
the environment at the Vermont Law School.

At almost every turn since filing suit 18 months ago, the workers
have been stymied by Justice Department lawyers. For several months
last year, the lawyers even refused to acknowledge the existence or
name of the base. Only after the workers introduced 300 pages of
references to it in government documents, including the Congressional
Record, did the lawyers relent somewhat.

The government lawyers also classified documents retroactively,
preventing the workers from using them as evidence, the workers say.
They refused to acknowledge that any of the men except Mr. Frost ever
worked at the base. They even obtained a court order preventing the
workers' lawyer from removing files from his own office.

In a special filing required from agency heads who want courts to
recognize the national-security privilege, Secretary of the Air Force
Sheila Widnall explained why the military is so cautious about
disclosing anything about Area 51. ''Collection of information
regarding the air, water and soil'' around a base, she said, ''is a
classic foreign intelligence practice because analysis of these
samples can result in the identification of military operations and
capabilities....Disclosure of such information
increases the risk to the lives of United States personnel and
decreases the probability of successful mission accomplishment.''

The Air Force declines to comment on specific allegations or on the
lawsuit, but a senior attorney for the service defends its record.
''We take our responsibility concerning protection of the environment
seriously, and we also take seriously our obligations to protect
national security,'' he says. ''We believe protecting the environment
and national security are not incompatible.'' In addition, a
spokeswoman says that in 1993 the government's Council on
Environmental Quality rated the Air Force's environmental-management
program the best in the government.

Although the plaintiffs concede Area 51 harbors military secrets that
must be protected, Jonathan Turley, a George Washington University
law professor who represents the plaintiffs and more than two dozen
other Area 51 employees who so far haven't joined in the suit, says
the government's position is too extreme.

''The government claims that revealing any information about Area 51
would jeopardize American lives,'' he says. ''The only American lives
lost so far are those of their own workers.''

Base Not So Secret:

The plaintiffs disparage the government's response, partly because
Area 51 isn't much of a secret. Until access to a nearby ridge was
restricted last year, Area 51's runways, radar towers and many of its
200 buildings could be seen by anyone who looked. Just off the Las
Vegas strip, in fact, is a bar called Area 51.

The base has had a local reputation as a big employer since the
1950s. Well before dawn most weekdays, hundreds of civilian workers
can be seen parking in a far corner of McCarran International
Airport. From there, they fly free of charge in unmarked planes to
the base, which sits on a dry lake bed called Groom Lake near where
atomic bombs were once tested. The Area 51 name is derived from its
designation on Nevada test-site maps.

Area 51's 1,000 civilian and 2,000 military employees sign oaths to
keep all information about the base confidential, and the former
workers who sued take it seriously. Fearing government retaliation
for whistle-blowing, they have obtained unusual permission from Judge
Pro to be known publicly as John Does.

Speaking nervously in interviews in Las Vegas hotel rooms, where
their lawyer had taken precautions to prevent government monitoring,
the men recently described the illegal burning and what they view as
the military's indifference to their health. They spoke on the
condition that they not be identified in any way.

They say the illegal burning grew out of the extreme secrecy at the
base, where U-2 spy planes, F-117 stealth bombers and other secret
aircraft have been developed and tested. In military parlance, it is
a ''black'' base: Access is granted only to people with top-secret
security clearance.

Nothing left the facility except the workers, they say. All else,
including office furniture, jeeps and leftover lobster and prime rib,
was either burned or buried.

Frequent Fires:

During the 1980s, the men say, classified materials were burned at
least once a week in 100-yard-long, 25-foot-wide pits. With security
guards standing at the edge, Air Force personnel threw in hazardous
chemicals such as methylethylketone, a common cleaning solvent, and
other things, such as computers, that produce dioxin when burned. The
toxic brew, including drums of hazardous waste trucked in from
defense facilities in other states, was ignited with jet fuel and
typically burned for eight to 12 hours, the men say.

Helen Frost says her husband, after being exposed to the thick, black
fumes, endured constant headaches and itchy eyes. But, like many of
the men, he continued to work because his pay -- about $50,000 a year
-- was high and the work was consistent, she says.

In the mid-1980s, however, dozens of Area 51 workers began developing
breathing difficulties, chest pains, neurological problems and
chronic skin inflammation -- all classic signs of exposure to toxins.
The burning especially affected those who worked outdoors in
maintenance and construction, about 150 to 300 yards downwind from
the pits.

The skin condition, which they called ''fish scales,'' broke out on
their hands, legs, backs and faces. They say they used emery boards
and sandpaper to remove the embarrassing scabs. ''I never saw
anything like it. We would get it dried up in one spot, and then it
would pop up somewhere else,'' says Stella Kasza, another plaintiff.
Last April, her husband, Walter, a sheet-metal worker, died at age 73
of liver and kidney cancer, which his wife blames on a decade of
exposure to the burning.

The workers contend that when they asked for protective gear, Air
Force officers rebuffed them. ''They told us we could buy our own
masks and then pointed to the gate and told us we could leave if we
didn't like it,'' recalls one of the John Does, who, like the others,
believes that the officers resented the civilians' higher wages.
Though the workers used gloves they purchased themselves, they say
base-security policy prevented them from bringing in any other
protective gear.

Reticent Patients:

Many refused to seek medical help or gave doctors incomplete
explanations for their symptoms. They say they feared 10-year prison
terms for talking about the base, as, they say, Air Force security
police repeatedly warned them.

But after Mr. Frost died of cirrhosis of the liver in 1989 at age 57,
many felt they had no choice but to seek legal advice. A study of Mr.
Frost's fatty tissue by Peter Kahn, a Rutgers University biochemist
and expert on chemical and hazardous substances, found unusually high
levels of dioxins and other carcinogens in Mr. Frost's cells that he
attributed to industrial exposure. Dioxins typically target the liver
and cause severe skin reactions, Mr. Kahn says. Though not the cause
of Mr. Frost's liver ailment, Mr. Kahn adds, exposure to the
chemicals could have accelerated its progress, resulting in premature
death. But the government had denied Mr. Frost's request for worker's
compensation.

Prof. Turley and his clients say they can prove the government
violated the Resource Conservation and Recovery Act, the federal law
regulating hazardous waste. And they say they can do this without
revealing anything that would undermine national security.

The law makes it a crime for anyone who handles hazardous waste,
including owners of oil-change shops such as Jiffy Lubes, to do so
without getting a permit or transportation manifest. It also requires
Environmental Protection Agency inspections. Early in the litigation,
the government conceded that it had never applied for a permit or
manifest for Area 51.

But the government has consistently refused to acknowledge that
hazardous wastes of any sort were kept at the base or that common
industrial chemicals such as trichloroethylene were used there. The
solvent, found in most machines with moving parts, is on the list of
toxins that must be reported and are regulated under the law.

"Acknowledging that a large military base has trichloroethylene is
like saying that a cleaning crew has ammonia. It would hardly be
cause for celebration in the Russian intelligence services," Prof.
Turley says.

Evidence in a Manual:

The government's position outraged some Area 51 workers, who sent an
unclassified government security-training manual to Prof. Turley. It
confirms the existence of a ''vehicle paint and body shop'' and
''base battery storage'' operations that typically produce hazardous
waste. When Prof. Turley asked Judge Pro to accept the manual as
evidence, however, the plaintiffs say the government classified it
retroactively. Government lawyers then tried to retrieve the document
from Prof. Turley and from news reporters even though it was
available on the Internet.

The government also asked the judge to seal the transcript of a
telephone conference call he held with attorneys for both sides about
the manual. At the government's request, the judge placed Prof.
Turley's office under seal until he decides what to do.

"The government has been simply stonewalling," says Steven Aftergood
of the
Federation of American Scientists, a Washington group concerned with,
among other things, what it considers excessive government secrecy.

The workers' attorneys have repeatedly asked Judge Pro, who once
found that the government wasn't liable for injuries to 216 workers
exposed to radiation at the Nevada test site between 1951 and 1981,
to limit the material the government can restrict under the
national-security privilege to truly sensitive information. In other
privilege cases, the lawyers say, judges have segregated sensitive
material and given the public access to the rest. A few courts have
enlisted special judges with high-level security clearance or held
secret trials rather than dismiss cases against the government,
Vermont's Prof. Dycus says.

The 'Mosaic' Theory:

The Defense Department, however, claims to have properly asserted the
national-security privilege. Though conceding that its position will
result in some routine information about the base being withheld,
government lawyers argue that they can't acknowledge seemingly
innocuous facts without creating a ''mosaic'' that an enemy could use
to figure out what the military considers a secret.

While Judge Pro hasn't ruled on the government's motion to dismiss
the case, he has decided in its favor on most important issues,
including the ''mosaic'' theory. Last month, he found that the
government had properly refused to provide virtually all of the
material sought by the plaintiffs and that the government had
properly classified the manual. He also rejected without explanation
the workers' argument that the government can't use the privilege to
conceal evidence of a crime. Prof. Turley's
office remains under seal and off limits to faculty members and
students. He says his clients intend to appeal many of the judge's
rulings.

On one important point, however, the workers prevailed. Last spring,
the government disclosed that the EPA had begun inspecting Area 51,
making it the first ''black'' base opened to public inspection. But,
citing the privilege, the government refused to make the inspection
report public, as required by law. After the plaintiffs objected,
Judge Pro ruled the government could withhold the report only if it
got an exemption from the
president.

Shortly afterward, President Clinton, who the same week publicly
apologized to the victims of radiation experiments and who is opening
up long-classified files about public exposure to atom-bomb tests in
the 1950s, granted the exemption. His memo said keeping the reports
secret was in the nation's ''paramount interest.''

Copyright © 1996 Dow Jones & Company, Inc. All Rights Reserved.

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