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The Ambushed Grand Jury
Wes McKinley and Caron Balkany
New York: The Apex Press, 2004
279 pp., $19.95, paperback
ISBN: 1-891843-28-1


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

So begins an Open Letter to the U.S. Congress from FBI Agent Joe Lipsky inside the cover of The Ambushed Grand Jury: How the Justice Department Covered Up Government Nuclear Crimes And How We Caught Them Red Handed.

This important book asks the readers to be a "Citizens' Grand Jury" to consider "how the U.S. Government and its defense contractors covered up dangerous environmental crimes at Rocky Flats Nuclear Weapons Plant, suppressed the indictments demanded by a federal grand jury, and threatened those jurors with jail if they spoke out." The authors also ask readers to contact their members of Congress to urge an investigation of those matters.

The Ambushed Grand Jury opens with a description of the events of June 6, 1989, from the viewpoint of FBI agent Lipsky, who led the raid on the Rocky Flats nuclear weapons plant, near Denver, Colorado. For the previous two years, Lipsky had been investigating allegations that the Department of Energy (DOE) and Rockwell International, the operating contractor, had contaminated workers, illegally released plutonium and other toxic materials into the air and streams, and lied about their actions, among other things. The final, key illegal act was infrared photography that proved that plutonium was being incinerated at night when the incinerator was shut down for safety violations.

Lipsky obtained a search warrant based on his 116-page affidavit describing ongoing environmental crimes. Rocky Flats officials were told that FBI agents were coming to brief them about a potential terrorist threat from EarthFirst. Once inside the plant with the warrant, FBI officials announced that they and Environmental Protection Agency personnel were raiding the plant, confiscating documents and trying to interview employees.

Most employees would not cooperate with the FBI, but Jacque Brever, a plutonium worker, became a whistleblower, who testified to the illegal incineration in December 1988. But when an FBI agent approached her in the Rocky Flats cafeteria, other plant workers began to harass her, so much so that she began to fear for her life. On September 14, 1989, while working at the Plant, Brever was contaminated with plutonium. One of the other workers told her, "Well, that's what you get for making waves." Brever continued to work at Rocky Flats until the Grand Jury was ended, when she resigned from Rocky Flats and went into hiding for almost a decade.

On August 1, 1989, 23 people were sworn in as the federal Special Grand Jury to investigate the alleged crimes at Rocky Flats and to decide whether to return indictments and what would be in their written report. Wes McKinley, a rancher from Walsh, about five hours from Denver, became the foreman of the Grand Jury, spending about a week a month in Denver. He and other grand jurors heard the testimony from Jacque Brever, and Allen Divers, the infrared analyst about the illegal incinerator burn, and about 180 other witnesses.

But on November 30, 1989, the Denver Post ran a story saying that the illegal incinerator burn had not occurred. FBI agent Lipsky, Jacque Brever, and Wes McKinley were all surprised that apparently secret Grand Jury testimony was leaked. Not only was the leak illegal, but the information was not true, though only Wes McKinley knew it at the time. Thus, from an early stage of the Grand Jury investigation, the U.S. Attorney had apparently decided that he wouldn't pursue a main allegation.

On March 24, 1992, the Special Grand Jury was disbanded and two days later U.S. Attorney Mike Norton announced a plea bargain in which Rockwell was fined $18.5 million. Mr. Norton also announced that he knew of "no evidence of any physiologic or environmental damage at all from the operations of the facility." Thus, no individuals from DOE or Rockwell were charged with crimes.

That result was contrary to what the Special Grand Jury had said in its February 18, 1992 draft report, which it had given to U.S. District Court Judge Sherman Finesilver. However, the judge ordered the Special Grand Jury report to be sealed and not released to the public. A local newspaper later released some of the Grand Jury Report, which asked for DOE and Rockwell officials to be indicted for environmental crimes. On October 16, 1992, Judge Finesilver asked the Justice Department to investigate whether one of the 23 Grand Jurors had violated the secrecy rule in releasing the report.

On November 19, 1992, Wes McKinley held a press conference in Denver to release a letter to President-elect Clinton signed by 13 of the Grand Jurors, asking for an investigation of the judge and Justice Department prosecutors mishandling of the environmental crimes at Rocky Flats.

The bulk of The Ambushed Grand Jury chronicles the efforts of Wes McKinley and Caron Balkany, a Santa Fe lawyer, to tell the story of the Special Grand Jury without violating the Grand Jury secrecy rule and being thrown in jail. A major motivating factor for Wes McKinley was that Rocky Flats is being turned into a wildlife refuge, which would require less cleanup than if it were to be released for residential or commercial development. McKinley said, "They don't even know how contaminated Rocky Flats is because the Justice Department covered up most of the evidence."

Among the evidence that they gathered was the 1992 congressional investigation by the House Science Subcommittee on Investigations and Oversight, chaired by Howard Wolpe, Democrat from Michigan. FBI Agent Lipsky testified to the subcommittee that there was plenty of evidence of the illegal plutonium burning and that lead prosecutor Ken Fimberg had wanted to indict some high-level officials but Justice Department officials in Washington, DC would not do so. One of those high officials was Attorney General Richard Thornburgh, who owned Rockwell stock. U.S. Attorney Mike Norton originally refused to testify to the subcommittee, but he ultimately did and contradicted Agent Lipsky's testimony. He even testified that Lipsky agreed with the plea bargain, something Lipsky denied. On January 4, 1993, the Wolpe report was published, including a finding that the Justice Department "bargained away the truth" about what really happened at Rocky Flats. The Justice Department said that the report was unfair and inaccurate and three days later Jon Lipsky was transferred out of the Denver FBI office.

After years of efforts, Attorney Balkany was able to talk with prosecutor Fimberg in the Netherlands, U.S. Attorney Norton, Jacque Brever, FBI agent Lipsky, and others. The fact that Fimberg and Norton had lied to Congress and to the public was further confirmed when Balkany finally talked with Allen Divers, the expert infrared analyst who determined that the nighttime photographs had confirmed that the illegal burning occurred. The prosecutors said that they had found that there was no evidence of such burning because Jacque Brever and other eyewitnesses were "unreliable" and that the infrared expert changed his opinion before the grand jury. On the contrary, Mr. Divers said that he had not changed his testimony, and in 2001, he still believed that the illegal burning had occurred.

Further information is found in the written journal Wes McKinley kept during the Grand Jury investigation, excerpts of which are included in the book. The journals reveal that on November 12, 1991, the attorneys told the grand jury that their work was done, even though there had been no indictments, no report, or other action. Instead, over the next three months, the jurors wrote the Special Grand Jury Report. On March 24, 1992, the U.S. Attorney had even taken the grand jury out of their designated room and into another room, where he first tried to dissuade the jury from giving their report to the judge, telling them that he would not sign their report. Then, when the grand jury said it was going to submit its report, tried to get them to indict Rockwell International as a corporation, rather than individuals from DOE and Rockwell. But the grand jury did not vote for the Rockwell-only indictment.

One question that has caused some people to doubt the Grand Jury's story is: Why would the U.S. Justice Department conduct a raid on Rocky Flats, convene a grand jury to investigate serious crimes, and then cover it up? Attorney Balkany speculates that a major reason was that other investigations and public information were leading up to major litigation against Rocky Flats, DOE and Rockwell, so by conducting the criminal investigation, the Justice Department preempted any other action, could control witnesses, documents, and investigations, and, they presumably thought, could also control the grand jury, since usually such juries rubber stamp the prosecutors. As it turned out, the Justice Department could not control the majority of the Special Grand Jury, but it could keep their report and the mouths of the jurors sealed.

Although McKinley, Brever, and Balkany are all heroes of this continuing effort to expose the truth and clean up Rocky Flats, their work has been supported by citizen activists who campaigned for years to close Rocky Flats, to clean up the site, and to publicize the work of the Special Grand Jury. While they want a congressional investigation of the Justice Department's continuing cover-up of the Special Grand Jury, the authors also want to support present and future work of those citizen groups who want to bring accountability regarding the U.S. nuclear weapons program. Thus, proceeds of the book are going to citizen groups.

The Ambushed Grand Jury tells a compelling story, but work is still needed so that the story does not end with a mostly successful cover-up and an unsafe Rocky Flats Wildlife Refuge - and the likelihood that the Justice Department behaves similarly in the future. Read the book and join the continuing campaign at www.Ambushedgrandjury.com.

— Don Hancock


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The Ambushed Grand Jury
is the true story of four Citizen Investigators who uncover the Justice Department’s cover-up of deadly radioactive contamination at Rocky Flats Nuclear Weapons Plant.
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