Poisoning case dismissal compelled by "state secrets" privilege

NEVADA–In early January, a unanimous panel of the U.S. Court of Appeals in San Francisco (9th Cir.) affirmed the dismissal of a case alleging violations of hazardous waste laws at the Groom Dry Lake Air Force base because the common-law “state secrets” privilege makes discovery and trial impossible.

In upholding the dismissal of former federal employees’ claims that they were poisoned while working at the classified military facility, also known as Area 51, the court ruled that the “government may use the state secrets privilege to withhold a broad range of information.”

The appeals court emphasized that the judicially created state secrets privilege is “absolute.” Even seemingly innocuous information may justify invoking the privilege to prevent all disclosure if it is part of a classified “mosaic,” the appeals court said.

Once the claim of privilege has been invoked and categories of privileged information have been identified, the federal government is not required to explain why each document requested affects national security, the appeals court wrote.

The appeals court decision stemmed from a case filed by former government employees and their families alleging that the federal government burned hazardous waste in open trenches in the late 1970s and early 1980s. As a result of the toxic emissions, the workers claimed they suffered respiratory distress, cancers and skin rashes.

When the former workers attempted to gather evidence to support their claims, the Air Force refused to furnish almost all of the requested information on the ground that the state secrets privilege prevented disclosure of “security sensitive environmental data.” After the federal District Court in Las Vegas refused to compel disclosure, the former workers appealed. (Kasza v. Browner; Counsel: Jonathan Turley, Washington, D.C.)