Toxic Shocker!

The government ambushed the Rocky Flats grand jury. Now its foreman is gunning for justice.

"Democracy is not a spectator sport," says Wes McKinley.

The rancher/math teacher/trail-ride wrangler/cowboy poet has been an active participant in democracy for close to six decades, since he first learned all about his civic duty in a one-room schoolhouse in that dusty corner of southeastern Colorado where he still lives. But for the past fifteen years, he's been playing a deadly serious game in Denver's back yard, where the government has home-court advantage.

Fifteen years ago, on June 6, 1989, the FBI launched a spectacular dawn raid -- "Operation Desert Glow" -- on Rocky Flats, the nuclear-weapons plant just sixteen miles upwind of Denver. Evidence seized in that raid was presented to Colorado's first-ever special grand jury, empaneled in August 1989 and charged with determining what crimes, if any, had occurred at the plant. McKinley wound up the foreman of that jury.

On March 24, 1992, the grand jury presented its final report and recommended that eight individuals -- some with the Department of Energy, some with Rockwell International, which ran the plant under a DOE contract -- be indicted for environmental crimes at Rocky Flats. Rather than accept the indictments, Department of Justice officials disbanded the grand jury, announcing two days later that they had reached a deal with Rockwell, charging the company -- not any individuals -- with environmental crimes that would be settled with an $18.5 million fine. A fine that was less than the bonuses Rockwell had been paid for operating the plant.

The grand jurors asked Judge Sherman Finesilver, the man who'd called them together more than thirty months before, to release their report. Finesilver ordered it sealed instead. "It is with great regret that the court notes that the Grand Jury, having the opportunity to inform the public of the facts of Rocky Flats, failed in its duty," he said.

In September 1992, Westword published "The Secret Story of the Rocky Flats Grand Jury," detailing how justice had been denied. The piece included a draft of that still-sealed report by the grand jury. "Pack your toothbrush," our attorney warned.

A few weeks later, Judge Finesilver warned the grand jurors that if they violated secrecy rules, they could be charged with contempt and punished with a fine or jail. Or both. The toothbrushes are still packed.

For almost a dozen years now, the grand jurors have been trying to tell the country the rest of the story. In November 1992, McKinley stood on the steps of the federal courthouse and read a letter to president-elect Bill Clinton from fourteen of the grand jurors, asking him to look into the case. They never got a response from Clinton -- but they did hear from Jonathan Turley, a law professor at George Washington University. Turley spent two years trying to get the grand jurors a hearing before Congress; when that effort failed, he returned to the federal courthouse where the grand jurors had first met seven years before and filed suit, asking that they be allowed to testify in court. That case is still pending; all the filings are sealed.

McKinley was not part of that action. By August 1996 he was running for Congress, hoping to spill the Justice Department's secrets from inside the House of Representatives. He lost the 4th District seat -- but his mule, Marvin, did win an endorsement from the Greeley Tribune. Two years ago, McKinley tried for a seat in the Colorado House. "We never actually lost the election," he explains. "They just quit counting when we got behind." McKinley's planning another run this fall: Democracy is not a spectator sport.

And McKinley's just rewritten the playbook with The Ambushed Grand Jury: How the Justice Department Covered Up Government Nuclear Crimes and How We Caught Them Red Handed -- a book with a title almost as long as McKinley's quest for justice. (The jury was going to be "bushwhacked" -- and how -- until Molly Ivins laid first claim to that word with her book.) McKinley's not in this alone: Co-author Caron Balkany, an attorney, did a lot of the work creating this call for a Citizens' Grand Jury, followed by hundreds of pages of evidence those citizens can use to issue their own indictment of the Justice Department.

McKinley met Balkany in 1996, when he dropped down to New Mexico to speak about Los Alamos at a meeting of Concerned Citizens for Nuclear Safety. "I didn't have much good news for them," he remembers.

In the early '90s, when the grand jury was hotter than plutonium, McKinley had been approached by assorted moviemakers and writers interested in deals, but they'd all fallen apart. No Ted Turner, no Ted Danson. Now he asked Balkany, a public-interest lawyer, for legal advice on how the grand jurors could finally get their day in court. "It turned out it wasn't a legal problem," she remembers. "The only way we could solve the problem was to do what we did -- the Citizens' Investigation. He's so compelling in his commitment, it's hard to walk away from something like that. I could tell that his commitment was that of an outraged person who felt that he had to do something, because he was in a unique position to do it and it had to be done. It was not about himself, and obviously not about money. It was about doing the right thing."

And doing it for a long, long time.

McKinley and Balkany worked on their Citizens' Investigation for years, searching out records, filing Freedom of Information requests, tracking down people involved in the original investigation. Two of them became key players in the book. Jacque Brever was working at Rocky Flats when the plant was raided; she and her roommate later talked to the FBI -- and as thanks, Brever was sabotaged on the job, contaminated with plutonium. Still, she testified before the grand jury about clandestine midnight burning of plutonium in Building 771 -- and as thanks, a government prosecutor later told Congress that she was "not a very reliable witness." After the government's deal with Rockwell was announced -- the agreement even stated that no midnight burnings had occurred -- Brever quit Rocky Flats and left Colorado for a decade.

But when Balkany tracked her down, the Citizens' Investigation found Brever's testimony very reliable -- alarmingly so, since the government had gone out of its way to deny the existence of those burns. "I have concluded that it didn't occur," then-governor Roy Romer said in October 1989, when everything about the grand jury's work was supposed to be secret -- but someone had leaked information about who was testifying. "For that incinerator to run at midnight without people knowing it would be virtually impossible." Brever knew about it, though, and the FBI's infrared pictures taken over the plant backed her story. (Balkany had requested a copy of Brever's FBI interview; the last six pages were entirely blacked out.)

FBI agent Jon Lipsky had engineered the raid on Rocky Flats, only to find that there had been plenty of engineering behind his back. Although he'd worked hard to get the search warrant sealed, since it provided lots of details about the reported crimes at the plant, including the secret burns and off-site contamination, the Justice Department made it public, allowing Rockwell to plot its legal strategy. In the summer of 1991, when the grand jury was ready to start making indictments, Lipsky was already hearing that a deal was in the works. And in January 1993, three days after Congress released the Wolpe Report, which determined that the Justice Department had "bargained away the truth" in its handling of the Rocky Flats investigation, Lipsky was transferred to Los Angeles, where the FBI's lead environmental investigator was assigned to work with gangs.

An open letter from Lipsky to Congress leads off the book:

"I am an FBI agent. My superiors have ordered me to lie about a criminal investigation I headed in 1989. We were investigating the US Department of Energy, but the US Justice Department covered up the truth.

"I have refused to follow the orders to lie about what really happened during that criminal investigation of Rocky Flats Nuclear Weapons Plant. Instead, I have told the author of this book the truth. Her promise to me if I told her what really happened was that she would put it in a book to tell Congress and the American people."

She did. Once the Citizens' Investigation was complete, Balkany sent the project to Edith Holleman, an attorney assigned to the Democratic staff of the House Energy and Commerce Committee who'd done much of the work on the Wolpe Report. But this time around, Holleman couldn't get a representative interested. So McKinley and Balkany turned the Citizens' Investigation into a book and convinced the non-profit Council on International and Public Affairs to publish it this month on the Apex Books label.

Just in the nick of time, too. Rocky Flats quit producing plutonium triggers long ago. In fact, the plant never went back into production after the raid. Kaiser-Hill took over management of the facility site in 1995 and is supervising the cleanup. Today, in accordance with the Rocky Flats National Wildlife Refuge Act of 2001, the 6,266-acre site is in the process of becoming a refuge, which will be under the U.S. Fish & Wildlife Service rather than the DOE. Fish & Wildlife's draft Comprehensive Conservation Plan and Environmental Impact Statement for Rocky Flats was released last month, complete with the slogan "Where the Mountains Meet the Prairie" and pictures of the endangered Preble's Meadow Jumping Mouse that frolics on the plant property; comments on the plan are being taken through April 26, with public hearings starting this week. The four possible options:

• No Action, which would mean that once the site is officially cleaned up, a task that should be completed by 2006, there will be no public use.

• Wildlife, Habitat and Public Use, including more than a dozen miles of trails for bicycles and horses along current roads. This is the action Fish & Wildlife has proposed, and it closely follows what's been done at the Rocky Mountain Arsenal.

• Ecological Restoration, which would return the site to its predevelopment condition, allowing some public use.

• Public Use, with much of the site open to all, a nineteen-mile trail system, and "environmental education efforts" that "would include on- and off-site programs for kindergarten through college-age students."

That idea scares the worn blue jeans off Wes McKinley. He visited Rocky Flats once, when the grand jurors were taken on a school-bus tour of the plant. He saw the pondcrete, a Rockwell innovation that mixed radioactive waste with concrete to create a sloppy, leaking mess. He saw building 771 -- from a distance -- where the midnight burning had taken place. He got angry about what had been done to the land. The future.

"So many people think the environment consists of a thermostat and a switch on the wall," he says. "But when you go outside and live there a few days, you know that's not true. The best way to clean up Rocky Flats is to put children and endangered species and horse trails on it? If you do it like this, there's going to be no questions asked. Who's going to point a finger at Cinderella and say she's not pure?"

Well, McKinley will. He remembers talking with a Rocky Flats engineer who told him that at one point, even as late as March 1992, the plant could be cleaned up -- but it's just too late now. The best solution is to cap the whole place once the obvious waste is hauled away. "That stuff lasts 24,000 years," he says.

Compared to the half-life of plutonium, McKinley's fifteen-year crusade seems like a drop in the leaky bucket. "The destination is not the enjoyment; it's the ride that's the most fun," he says. "Going over the trails. Traveling the trails has been a lot more fun than arriving at the water hole."

Still, he's glad the story is finally pulled into one package, even if it's a package that includes so much detail on secret grand-jury deliberations that he could land in jail for violating Rule 6(e). "I never quit," McKinley says. "The day after the grand jury was over, I started. I'd been through so many people to tell the story, but it didn't work. I had the technical ability, but not the legal ability. Caron was able to provide the legal help we needed and put it together."

And this month, they'll put it together for the cameras -- at a press conference announcing the Citizens' Initiative this weekend, at a presentation with Brever on The Ambushed Grand Jury at the LoDo Tattered Cover March 23, at an Alliance for Nuclear Accountability policy meeting in Washington, D.C., a few days later. As their book suggests, "Here, the trial will take place in the court of public opinion. Perhaps where it matters most."

Although the grand jurors are still on hold, the past fifteen years have seen some changes. Judge Finesilver retired from the bench and became a mediator. Hal Haddon, the lawyer who got Rockwell such a sweet deal, went on to represent the Ramseys and Kobe Bryant. An entirely different Bush is in the White House. And the Justice Department has become less forgiving of corporate execs who commit crimes, although the government still loves its defense contractors. "The basic way the government does business with defense contractors has not changed," Balkany points out. "It's still about money. All about money."

Not all whistleblowers make the cover of Time, either. "The bureau has been retaliating against me since the Wolpe Report came out in January 1993," Lipsky, the man who set everything in motion, told Balkany when they first met. "But that's not the point. The point is the Rocky Flats National Wildlife Refuge Act. Rocky Flats is no place for recreation."

And democracy is not a spectator sport.

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