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For six years, no one’s been allowed inside Jonathan Turley’s office except Jonathan Turley. Not his students at George Washington University Law School, not even the janitors. It is off-limits because of Turley’s representation of several former federal workers in a long-running toxic tort suit over conditions at a military installation near Groom Lake, Nev. — also known as Area 51. The office was sealed at the request of the federal government, which also got a federal judge to conceal portions of the record in the nearly resolved case that returned to the 9th U.S. Circuit Court of Appeals on Friday. The issue now is not whether workers can pursue what is essentially a tort case involving state secrets — they can’t — but the extent of the government’s right to seal and redact court material in the name of national security, and what role judges should play in probing such requests. The case could be important as the FBI ramps up its focus on terrorism, increasing the likelihood that courts will see more cases involving sensitive national security issues. Turley and a Las Vegas newspaper argued that the government’s claims that seemingly innocuous pieces of information should be kept from the public because they form a larger, secret “mosaic” are ludicrous. Turley said a key document — a “linchpin” of the mosaic theory — is available on the Internet, and the government’s real motive may be to conceal embarrassing information about the conduct of government lawyers. Turley said the government sought permission from the court to interview Area 51 workers to determine whether they had spoken to him in connection with the lawsuit, but later lied to reporters who inquired whether it took such action. “If the court allows facial contradictions to remain [under seal], it’s going to have an enormous impact on bringing the government to account,” Turley said after the argument. Furthermore, he argued, the information redacted from court files is innocuous, including statements made by journalists in nationally published magazines. One sealed piece of evidence in the case includes an Air Force security manual. A lawyer for the Las Vegas Review-Journal, Steinhart & Falconer partner Roger Myers, held it up for the judges to see. It was downloaded, he said, from the Internet. “You go to the Web sites that are in our brief and you can download this manual,” Myers said. (A Google search by The Recorder found, within a few seconds, a document that purports to be the manual.) The panel seemed divided. Ninth Circuit Judge Pamela Rymer appeared hostile to the plaintiffs’ arguments, while Judge A. Wallace Tashima tangled with the government’s attorney. Seventh Circuit Senior Judge Harlington Wood Jr. could be the swing vote. “You have to face up to the fact that in our previous opinion we essentially said that the entire subject matter of this lawsuit is protected,” Rymer told Myers. Although Turley and Myers pressed their point that the manual was publicly available yet still sealed, Rymer repeatedly shook her head. When she questioned whether the online copies were indeed the same as the court copy, Turley declared forcefully: “Your honor, we found the sealed exhibit on the Internet.” (The document had been in a court file for a short time before it was sealed and made its way into the possession of a handful of media outlets.) Tashima wasn’t as friendly to the government as Rymer. “Read this line here, line six,” Tashima said, summoning Department of Justice appellate attorney Ron Spritzer to the bench to read the lower court’s unredacted transcript. “Now tell me why this should be classified.” Spritzer said he couldn’t get into specifics, but argued that the information was one piece in a mosaic the government says is classified. As for the manual, Tashima — his blood rising — said, “But it’s already out in the public.” “Your honor, you’re looking at it in isolation,” Spritzer said, repeating his argument. “So what if it does [fit into a mosaic]?,” Tashima said. “It’s already known!” Except for two widows, the names of the plaintiffs in the case are also sealed. They allege that the government burned toxic material in football field-length pits on the base, causing a variety of health problems. The defendants were the Department of Energy, which adopted changes in response to the suit, and the U.S. Air Force, which got the suit thrown out by invoking state secrets. The briefs in the present appeal were also temporarily sealed after the government said they contained sensitive information. That move, which prevented court staff from reviewing the material, appeared to backfire as Turley pointed out that one of the briefs is now fully public, except for a single redacted footnote that refers to a widely available media report. “The first thing you did on appeal was ask that everything be sealed, which turned out to be a ridiculous proposal,” Tashima told Spritzer. Another issue argued Friday was the level of scrutiny judges should give government requests to keep information sealed. Turley said the affidavits submitted in support of sealing information did not even outline what level of classification the disputed information had received. “The court can’t simply take a conclusory affidavit,” Turley said. Myers said the standard was strict scrutiny, and Rymer responded: “Which is what the district court did,” and then added: “I’m not sure that’s even the case.” Spritzer said courts should defer to “the expertise of the agency.” Concluded Myers after the hearing: “What the government’s basically saying is the courts can’t review it as long as it’s part of a mosaic.” Turley remains somewhat baffled by the government’s zealous protection of information that he says is of dubious connection to the security of Area 51. “It has been otherworldly to litigate this case,” he said.

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