SUDDENLY, YOUR BRIEFCASE IS CLASSIFIED

Groom Lake Litigation Tests Government's Secrecy Standards

LEGAL TIMES, JUNE 26, 1995

By Benjamin Wittes

The press has copies. The Justice Department has copies. Even the 
public can obtain copies over the Internet of a thin U.S. Air 
Force manual dealing with security issues at a super -secret 
military facility in southern Nevada.

Yet the Air Force and the Justice Department are pulling out the 
stops to make sure that one man--the plaintiffs lawyer who wants 
to use the manual in court against the government--doesn't get to 
keep his copies.

Despite the manual's widespread availability, the government 
claims that the document, which bears no classified markings, 
contains secrets so sensitive that letting Jonathan Turley 
introduce it in court could cause "exceptionally grave damage to 
the national security."

The manual in question deals with security at the Groom Lake Air 
Force base in Nevada, a facility so sensitive that the government 
will not even confirm that it exists. Turley is suing the Pentagon 
and the Environmental Protection Agency in U.S. District Court in 
Nevada, claiming that his anonymous clients were injured by 
systematic environmental abuses when they worked at the base.

The manual has been circulating publicly for at least a year with 
no peep of protest from the government. It even recently appeared 
on the Internet, and can be downloaded with a few keystrokes.

But the Justice Department lawyers defending the government are 
suddenly claiming that the booklet is classified. In fact, the 
government now asserts--in a June 15 telephone notice to Turley's 
staff--that not only is the manual classified, but so are Turley's 
court filings that mention it.

What's more, Turley says, the government has requested that Turley 
and the court turn over to Justice for safekeeping all material in 
their possession that it claims is classified--including Turley's 
own briefs, notes, files, computer records, source names, and 
media contacts.

And on June 16, Justice lawyers asked U.S. District Judge Philip 
Pro for summary judgment, arguing that security concerns preclude 
litigating the matter further.

"It is apparent that plaintiffs will not be able to present 
evidence to prove any of their claims and defendants will not be 
able to present evidence disproving those claims without causing 
serious risk to the nation's security," the department argued in 
its motion.

THE CLASSIFIED ZONE

The incident has Turley fuming that the government is classifying 
information simply as a litigation tactic in a case he claims 
proves criminal conduct on the part of government officials.

"The only element missing from this situation is a Rod Serling 
voice-over," says Turley, a professor at the George Washington 
University National Law Center and director of the school's 
Environmental Crimes Project. "This document was clearly viewed 
and treated as unclassified until June 14, when it was introduced 
as evidence of dilatory practices by the defendants."

The Air Force, meanwhile, denies that it classified the document 
in response to Turley's action. Officials there insist they are 
merely protecting legitimate state secrets. "The [document] has 
always been classified, and Mr. Turley's motions that were created 
using information in that classified document are therefore also 
classified," says Col. Thomas Boyd, a spokesman for the Air Force 
to whom the Justice Department referred questions. "Our position 
is that a secret is still a secret, even if it appears on the 
front page of The New York Times in a World War II-sized 
headline."

Boyd adds that the Air Force feels anyone in possession of the 
manual is obligated to return it. The Air Force "would appreciate 
if [anyone with copies] would turn those back over to us, and we 
will make any arrangements convenient . . . in doing that," he 
says.

But if the government claims it is merely engaged in standard 
efforts to protect sensitive information, national security 
litigators--including three former general counsel of federal 
security agencies--say the situation is hardly routine. And civil 
liberties advocates describe it as outrageous. "This appears to be 
a very disturbing effort by the government to attempt to use the 
courts to suppress information which . . . has now been widely 
circulated in the public domain," says Kate Martin, director of 
the Center for National Security Studies. Justice is "invoking the 
general supervisory powers of the federal courts to silence an 
attorney, when it would be constitutionally barred from taking 
such actions against other private individuals."

Stewart Baker, a former general counsel of the National Security 
Agency, describes such talk as "overheated rhetoric." While he 
agrees that the effort to keep public-domain material out of court 
is peculiar, Baker, now a partner at D.C.'s Steptoe & Johnson, 
says that "if someone reveals classified information in the brief, 
the government has the authority to try to secure the brief."

Professor Turley has long claimed that the government is using 
secrecy for tactical reasons to counter his claim of environmental 
abuses at Groom Lake. The existence of the base, which is believed 
to be used for testing of experimental and captured foreign 
aircraft, has been widely reported in news articles, and pictures 
of the facility have been published. But the government still 
refuses to admit the base exists, acknowledging only that there is 
an "operating location near Groom Lake."

Turley, however, insists not only that there is a base, but also 
that it is an environmental disaster. He claims that hazardous 
wastes were burned in open trenches on the site. Workers were not 
given protective clothing, he alleges, and they developed elevated 
risks of cancer and, in some instances, a rare and painful skin 
condition.

Turley, with help from a watchdog group called the Project on 
Government Oversight, is representing five John Doe plaintiffs and 
a sixth who recently died of cancer. Turley is suing the EPA, 
alleging that it failed to monitor environmental conduct at Groom 
Lake as required under the Resource Conservation and Recovery Act. 
The John Does, all former workers at Groom Lake, are also suing 
the Pentagon for committing the environmental abuses. In the 
Pentagon suit, they are joined by Helen Frost, the widow of former 
Groom Lake sheet-metal worker Robert Frost. (See "Target of Suit 
Doesn't (Officially) Exist," Sept. 5, 1994, Page 1.)

The current dispute arose because of the Justice Department's 
repeated use in discovery of the rarely invoked, but extremely 
powerful, military and state secrets privilege. That common law 
privilege allows the government to withhold information from 
discovery with a sworn declaration by the head of a government 
agency that national security would be harmed if the information 
were made public.

For months, Turley's only discovery request was for the name of 
the base. Justice, whose team in the case was then headed by Lt. 
Col. Richard Sarver, claimed that the "operating location" had no 
name and refused to give more information, citing the state 
secrets privilege and a declaration from Air Force Secretary 
Sheila Widnall that the material requested could "reasonably be 
expected to cause exceptionally grave damage to the national 
security" if made public.

Sarver, whom the Air Force had detailed to the Environmental 
Defense Section of the Justice Department's Environment and 
Natural Resources Division, recently resigned from government 
work, leaving Russell Young, another attorney in the section, as 
counsel of record in the case.

After failing to secure the name of the base, Turley submitted 
further interrogatories, asking the government to confirm that 
items sure to be present at any air base are present at Groom 
Lake, which is also known by such other names as "Area 51" and 
"Dreamland."

The government invoked the state secrets privilege in response to 
many of his inquiries. Using the privilege, the government claimed 
that it could not describe any firefighting units at Groom Lake. 
It also refused to specify whether any jet fuel is kept there or 
whether a single automobile battery has been disposed of at the 
facility. MANUAL KNOWLEDGE

In an attempt to prove that the government had invoked the 
privilege improperly, Turley submitted the Air Force manual, a 
version of which was provided to Legal Times by Steven Aftergood 
of the Federation of American Scientists, a group that opposes 
government secrecy. The version provided by FAS differs in small 
ways from the one submitted in court by Turley, but is 
substantially the same document, according to Aftergood and two 
other sources.

The document, entitled "DET3 SP JOBKNOWLEDGE," gives no indication 
that it is classified. Turley submitted it under seal, asking 
Judge Pro to certify that it contained no classified information, 
and then unseal it and place it in the court record. In a June 9 
motion--which has since been classified--Turley argued that the fact 
that this unclassified document answered his interrogatories 
proved that the government had used the classification system not 
to protect secrets, but to stymie his case.

The manual clearly establishes the presence of firefighting units 
at Groom Lake--although nowhere in the document is the facility 
itself named. It also clearly establishes the presence of jet 
fuel, hazardous material personnel, and the contractor that 
employed Robert Frost, the sheet-metal worker. While the manual 
further indicates the presence of cars--and hence, presumably, the 
car batteries Turley asked about--it does not seem to indicate that 
any batteries have been disposed of at the facility.

"The manual establishes that this information is not classified, 
should have been disclosed to Plaintiffs' Counsel, and that these 
facts easily could have been confirmed by Defendants," Turley 
wrote in the June 9 brief, a copy of which was given to Legal 
Times before the government's classification action.

Turley says he notified the Justice Department that he intended to 
file the manual a week before doing so, and that he received no 
objection to its use. Col. Boyd claims Justice attorneys notified 
Turley that the document was classified, although Boyd says he 
does not know whether the notification predated Turley's 
submission of the manual.

But six days after Turley filed it, Justice notified his staff 
that both the document and all Turley's filings referring to it 
were classified. And the department obtained an order from Judge 
Pro forcing Turley to attempt to retrieve all copies of the brief 
that he had previously handed out.

"If [Turley's] brief asserts that the document was unclassified, 
his premise was wrong," says Boyd. "The manual, as you call it--I 
can't confirm that [it is a manual]--has always been classified."

However, if the manual was classified before Turley introduced it 
into evidence, that's not immediately apparent from looking at it. 
The document bears none of the telltale stamps of classified 
material, only the warning "DO NOT REMOVE FROM SITE--FOR OFFICIAL 
USE ONLY."

Asked how the document could be considered classified without 
being marked as such, Boyd notes that "in a facility where 
everything is classified, you can stamp it 'Do Not Remove,' and it 
is assumed to be classified." But Aftergood, FAS's point man on 
secrecy, ridicules this interpretation.

The document "is manifestly unclassified, because if it were 
classified, it wouldn't say, 'For Official Use Only,' " asserts 
Aftergood. "You don't say, 'Top Secret,' and, by the way, 'For 
Official Use Only.' "

Aftergood points to language in Executive Order No. 12356, which 
currently governs official secrecy. The order allows only the 
words "Top Secret," "Secret," and "Confidential" to be used to 
designate classified status. "Except as otherwise provided by 
statute, no other terms shall be used to identify classified 
information," the executive order says.

A PROTECTIVE HEARING

Regardless of whether the document was properly classified, the 
government persuaded Judge Pro to hold a sealed hearing to discuss 
Justice's request that Turley return his classified material.

Neither Boyd nor Turley will discuss the June 20 hearing, citing 
the court-ordered seal, but since the government had already asked 
Turley to turn over any additional notes, source names, and media 
contacts, it is likely that this request was also considered at 
the hearing. Boyd, in any case, denies Turley's pre-hearing claim 
that Justice was preparing to search his office for classified 
material.

"We never said we would seize the documents. But we said we would 
seek relief to prevent him from distributing them, and the court 
granted that," says Boyd.

Two Justice Department sources, however, do not deny that Justice 
might have asked Judge Pro to compel Turley to produce the 
documents. One says that the department "was trying to have the 
court craft what was needed to protect the government's secrets 
and then enforce its decision."

Responds Turley: "If the government is stating that it has only 
asked for a guarantee of nondissemination, then the government is 
lying. . . . Counsel should keep in mind that a seal affixed today 
can be a seal lifted tomorrow." If the government did request a 
seizure at the closed hearing, the request apparently was not 
immediately granted, since no search of Turley's offices had taken 
place as of late last week. Turley, who says he spent the night of 
June 15 guarding his office with students, was confident enough 
after the hearing to sleep at home.

He insists that he will go to jail before complying with any court 
order to turn over his files.

"The suggested authority of the government to rifle through my 
files to extract objectionable materials is wholly foreign to this 
legal system," says Turley, noting that the files may contain the 
names of his clients as well as information covered by  the 
attorney-client privilege. "I fully intend to protect the contents 
of my office and my personal contacts from government seizure or 
review."

Turley's case is not the first time the government has classified 
opposing counsel's court filings. National security litigators say 
that it happens occasionally in the criminal context, when a 
defendant with access to classified information--such as Iran-
Contra figure Oliver North--needs to use that material to construct 
a defense.

Even in the civil context, the government has classified an 
opposing counsel's brief when nuclear secrets were involved. 
According to Mark Lynch, a partner at D.C.'s Covington &Burling 
who 16 years ago helped litigate United States v. The Progressive 
Inc., the government sought to review some of his filings in that 
case.The 1979 case involved a government effort to stop The 
Progressive magazine's publication of an article on the 
construction of a nuclear bomb.

But the government has never indicated that the Groom Lake case 
could compromise nuclear secrets. And civil liberties lawyers 
upset with the government's conduct in the matter point out that 
the secrets surrounding Groom Lake do not seem all that well-
concealed.

"To fight over the name just seems absurd to me," says Martin, the 
Center for National Security Studies director. Even national 
security specialists who defend the government's current action 
describe it as unusual.

"Oh, boy, what a mess!" exclaims Kathleen Buck, who served as 
general counsel at the Pentagon under President Ronald Reagan. "I 
find it disturbing that some process has not been established to 
handle classified filings. That's the first thing I would have 
done representing the government in this case." Buck, who is now a 
partner in the D.C. office of Chicago's Kirkland & Ellis, says 
that she can think of only two other civil cases in which the 
government found opposing counsel in possession of classified 
information. But she says those matters were very different 
because they weren't in litigation and documents never became 
public.

Baker, the former NSA general counsel, also says that he knows of 
no other case like Turley's, but he adds that the government's 
action "doesn't sound inconceivable."

"One of the things one worries about in classification is the 
mosaic," says Baker, citing the government's longtime claim that 
individual items of unclassified information can, when taken 
together, make up a composite picture that is classified. "When 
someone as smart as Turley . . . gets some information from this 
unclassified source and some from this one, all of a sudden there 
are real secrets being revealed."

But if the purpose of the government's action was to protect the 
mosaic, the effect has been just the opposite. Within four days of 
Justice's notifying Turley that the manual was classified, copies 
appeared on an Internet-accessible newsgroup called 
"alt.conspiracy.area51" and later showed up on the World Wide Web.

How worried is the Air Force? Boyd will not confirm or deny that 
the document now available on the Internet is the manual at the 
heart of the current controversy, or even that it is classified. 
He does say that the Air Force will redact and return copies of 
Turley's motion that have been turned in. But when asked whether 
the military will similarly redact the security manual, he laughs: 
"If you were to redact the document, you wouldn't have much of it 
left."

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