Personal Injury & Torts
Jun. 18, 2002
9th Circuit Hears Case on Top Secret Documents
SAN FRANCISCO - A federal appeals court panel appeared sharply divided over how far the government can go to assert national security as a shield against potentially embarrassing statements about toxic waste at a secret military site.
The outcome of the arguments before the 9th U.S. Circuit Court of Appeals arguments in Kasza v. Browner, 00-16378, may rest with the vote of a visiting judge from the Chicago-based 7th Circuit, appointed by President Ford in 1976.
During arguments Friday, Jonathan Turley, a George Washington University law professor who has worked on high security cases and for the super-secret National Security Agency, said the government's assertion of national security in a hazardous waste suit "is the most outrageous case of abuse of classification I have seen in all my work in this area."
Turley represents five current and former workers and the widows of two men allegedly killed by toxic chemicals at Area 51, a once-secret base 90 miles north of Las Vegas made famous by such TV programs as "X-Files" and the movie "Independence Day."
Because of his involvement with the litigation, Turley's own office at George Washington has been declared a classified area, and his entire office has been closed to anyone else for the past six years as a result of Kasza.
Friday, the 9th Circuit was asked by a Nevada newspaper, the Las Vegas Review-Journal, acting as an intervenor in the case, to rule that the Justice Department cannot simply declare any pattern of sensitive information a "national security secret" to curtail judicial review.
In addition, Turley asked the court to declare that U.S. District Judge Philip Pro had not gone far enough in reviewing and unsealing parts of sealed and redacted documents as instructed by the appeals court in 1998.
Turley argued that the government "intentionally and knowingly lied to the media and the public" about statements it made during a closed-door court hearing and now wants to keep evidence that it lied sealed.
At a time when national security questions arise almost daily, the case raises serious questions about how much latitude the government has to protect national secrets with little or no judicial review. But the case is a refinement of a similar appeal made in 1998.
In a 1998 decision by the same panel in the same case, the circuit gave the government sweeping rights to keep its own secrets. Judge Pamela Rymer, writing in 1998, held that even public information reported by journalists may be declared classified by the government if it is part of a "mosaic" of information constituting state secrets. Kasza v. Browner, 133 F.3d 1159.
The court cannot order the government to disentangle the nonclassified from the secret information, she wrote.
Rymer stuck strongly to that position in Friday's argument insisting, "it is the context that matters."
Attorney Roger Myers, of Steinhart & Falconer, representing the Las Vegas newspaper, waved a document at the panel he said he had downloaded from the Internet - a copy of the Air Force manual at the center of the classification dispute.
"We don't know what that document is," Rymer insisted, shaking her head.
Judge A. Wallace Tashima flatly disagreed with Rymer and strongly criticized the government's resistance to unsealing material apparently in the public domain.
"I know you over-reacted by asking all the documents sealed in the case. It was a ridiculous position. Now I am looking at this skeptically," Tashima told Justice Department environmental attorney Ron Spritzer.
Tashima's reaction is significant. In 1998, he reluctantly joined Rymer's opinion but wrote separately to say he thought the panel might have gone too far in allowing government agencies to declare their inner workings secret.
Spritzer insisted the government had a "legitimate cause for concern."
He said he could not describe specifics without violating the sealed nature of the records in the case but added obliquely, "the concern goes to the relationship of the documents."
Tashima called Spritzer to the bench to look at a line from the classified section of the brief demanding to know why the information was classified.
"Why is that redacted?" Tashima demanded without disclosing the material.
Spritzer insisted that even innocuous material, "if it forms part of a mosaic, can lead foreign intelligence sources to the information."
Visiting Judge Harlington Wood Jr. asked few questions but did ask Spritzer whether it was OK for the government to redact material to cover up its mistakes.
Wood originally joined Rymer in the 1998 ruling.
The military base variously known as Groom Lake and Area 51 has long been the butt of jokes as the repository of alien bodies from crashed spaceships and has gained a cult following. But the base also is thought to be the site for the development of stealth aircraft, U-2 spy planes and other military hardware.
In 1994, current and former workers filed suit accusing the government of violating hazardous waste laws by allegedly disposing of toxic chemicals in 55-gallon barrels in football field-size open pits and then setting them ablaze with jet fuel.
Two workers died and others became sick, allegedly from exposure to the improperly destroyed chemicals.
The 1998 decision created an exception to the Resource Conservation and Recovery Act, the nation's hazardous waste law, by allowing the government to refuse to disclose potentially incriminating information under RCRA based on national secrets protection.
Pamela Mac Lean
For reprint rights or to order a copy of your photo:
Email
Jeremy_Ellis@dailyjournal.com
for prices.
Direct dial: 213-229-5424
Send a letter to the editor:
Email: letters@dailyjournal.com