She describes in a lot more detail of her and the ACLU lawyers experiences in trying to deal with the State Secret's privilege in Sibel Edmonds appeal to the Supreme Court, which subsequently wasn't heard by them.
It says some good things about how this privilege is not used in criminal cases, since CIPA is used instead to govern how secure information is protected in those cases. All the more reason to pressure congress in to doing impeachment and get indictments on some of these other individuals, so that it can't be used as a shield when others have to resort to civil litigation to try and bring these criminals to justice. Also brought up is the Totten Doctrine, which I think we should all seek to understand so that we can lobby more effectively to those in decision capacity that don't understand it to make it clear how the State Secrets Privilege is being misapplied as if it were this doctrine.
I can't find the video clip or transcript online anyplace, but CSPAN in its 2005 Supreme Court Preview had ACLU's Ann Beeson and Sibel Edmonds speak on the State Secrets Privilege in that case, and Ann Beeson's comments were particularly relevant. Here's a transcript I just did of what Beeson said about that case and how State Secrets Privilege was applied (or misapplied):
Aired on CSPAN on as the Supreme Court Case Review session on September 26, 2005:
Ann Beeson:
Good morning, I'm Ann Beeson, the Associate Legal Director of the National ACLU, and I'm here this morning to talk a little bit about a case that we'd filed a (?) petition in, Sibel Edmonds vs. the Department of Justice.
Sibel Edmonds joined the FBI as a translator shortly after 9/11, and worked on translations in counter terrorism and intelligence cases including investigations directly related to the 9/11 attacks. After being there for several months, Sibel discovered serious security breaches and potential espionage within the translation unit and began to report those problems up the chain of command within the FBI. Instead of thanking her for making the bureau aware of these problems, the FBI fired Ms. Edmonds. And this case began as a straight forward, well shortly after that Sibel filed a lawsuit, a straight forward employment retaliation case. And the case began that way, as a simple employment retaliation case.
Over the past few years however, it has become a pivotal test of executive power in the post 9/11 world. And in particular the case is indicative of two disturbing trends. The first is the administrations excessive user of secrecy in national security cases, and the second is the judiciary's reluctance to trump the executive in national security cases. These issues as many of you know of course have popped up in many of the national security cases in the last few years. In this case I think they're quite extreme.
The particular tool that the administration has used in Sibel's case is a rarely invoked privilege called the "State Secrets Privilege". This is an absolute privilege that was intended to protect particular evidence from disclosure in discovery, and after one files a lawsuit, one goes in to the discovery phase. If the plaintiffs demand a particular piece of evidence which is a "state secret", the justice department can come in, the Attorney General himself, and invoke the state secrets privilege to deny the plaintiffs access to discovery.
Unfortunately in this case, uh, and let me just say that a typical use of the state secrets privilege would be to protect a military secret like you know the placement of a particular ship during battle, or something like the identity of a covert CIA agent. In this case, what the Attorney General did after Sibel filed her lawsuit was to come in at the very beginning of the case and file a motion to dismiss, which of course is not so unusual, in and of itself. But their theory for dismissing the whole case at the outset was that nothing in the case could be litigated at all because of the state secret privilege, and that instead the case had to be dismissed.
This is a very broad and radical use of the privilege. They had a bit of a problem unfortunately when they did this and invoked the privilege because two years before, they had, Sibel's case had got the attention of high level members of congress, including senators Grassley and Leahy, who had demanded answers from the FBI. And the FBI had provided two different unclassified briefings to these members of congress, and had discussed in great details Sibel's case. They had also confirmed several of her allegations, particularly about the potential espionage.
Now the fact that they had provided this unclassified evidence to congress undercut of course their state secrets argument, that nothing in this case could be discussed because it was all state secret. And so they took the radical additional step. I mean it was enough that John Ashcroft himself came in and invoked the state secrets privilege, but they then went and retroactively classified the information that they had provided the congress in unclassified form. And they did this specifically to support their state secrets privilege invocation in the lawsuit and they really were quite direct about this, although they didn't bother to tell the court. Unfortunately the district court bought their sort of broad argument, and did dismiss the case on the assertion that the nature of Sibel Edmonds' job as a translator and the events surrounding her termination were all state secrets and therefore her case couldn't go forward at all.
Shortly after the ruling, the Department of Justice, in a separate case, actually conceded that the information that they had provided to congress, which was widely available on the internet by the way, and had been for months, was not in fact classified. In the meantime, as the case was going forward, the Inspector General of the Justice Department had been investigating Sibel's claims.
There were rumors that the IG had completed his report, but unfortunately, the department that was in charge of providing an unclassified summary, or version of the report, was the Justice Department itself, the same department that was being sued in Sibel's case! Well, perhaps unsurprisingly, the Justice Department did not bother to release any unclassified version of the Inspector General's report, until a couple of days after we filed an appellate briefing in DC Circuit for Sibel's case.
Now once that report came out, it provided very strong confirmation of the strength of Sibel's claims in the lawsuit. In fact, the Inspector General of the Justice Department had concluded that many of Ms. Edmonds allegations were supported, that the FBI did not take them seriously enough, and that her allegations were in fact, and I'm quoting, "the most significant factor in the FBI's decision to terminate her services."
Well at that point, we assumed that we had an even stronger case. Not only did the case law not support their broad invocation of the state secrets privilege at the outset of the litigation, but now we had a lot of new evidence that could be used to support her First Amendment claim in the retaliation case. We had all the information in the Inspector General's report, which was now public, and we had the information that had been retroactively classified that was provided to Congress, and then later admitted by the Justice Department to be not classified again.
Unfortunately, it did not go so well before the DC Circuit. We had sort of a bad omen, when the day before the argument here in DC, I got a call from Clerk of the DC Circuit, who informed me... Literally this was about 2:00 in the afternoon, on I think it was a Tuesday, and the argument was on a Wednesday, that the Circuit had decided to close the courtroom and to exclude the press and the public. We were quite surprised by this, because the Justice Department itself had written a letter to the court saying that they were willing to argue the case in open court.
The DC Circuit panel did not issue any findings to support the need for secrecy, the need for closure of the courtroom, which is quite remarkable. And within the space of a few hours, every single major media outlet in the country, including CNN, the Washington Post, The New York Times, and many, many others, had filed a motion to intervene to open the courtroom. The next morning, when the panel began its deliberations, they simply issued a one line order, rejecting the media's request to have the courtroom open, and the request of course, by the parties, by Ms. Edmonds herself, and the courtroom was closed. A few weeks later, the DC Circuit affirmed the dismissal of Ms. Edmonds' case, without any opinion, simply citing the rationale of the District Court.
Ironically, at the same time that Sibel's case was winding its way through the courts, new information was made public about the government's motivation, the Justice Department's motivation. Fifty years ago in another case that basically set the standard for the invocation of the State Secrets Privilege. This was the case of the Supreme Court decided called "Reynolds vs. the United States". It is not considered the State Secrets Privilege since that time fifty years ago. And what happened just in the last couple of years. is that some of the underlying documents at issue... That case involved a military crash, and many of the family members of the victims of the crash suing the government over negligence.
The government in that case refused to produce that accident report, claiming that the accident report contained important military secrets about the operation of this military plane, and the court upheld the privilege. Now importantly in that case, they didn't dismiss the case. They upheld the invocation of the privilege and they sent the case back down and said try to win your claim, plaintiffs, without using this particular piece of evidence. So Reynolds involved an invocation and an application of the privilege that was much narrower than in Sibel Edmonds' case.
But the irony is that this new information that has come to light about the Reynolds case shows in fact that the real motivation of the government in invoking the privilege in that first big case fifty years ago, was its own negligence. It turns out that there was no information whatsoever in the accident report that even talked about any of the classified military systems on the plane. The only information that was in the accident report, was that in fact the government had been highly negligent, the military had been highly negligent in attending to many, many problems with the operation of this plane, and so they were basically trying to cover up their own negligence and not allow the plaintiff to go forward with the case.
We strongly believe that Sibel Edmonds' case is an example of the same phenomena, and that is invoking the State Secrets privilege not to protect national security, but to cover up its own wrongdoing and its own negligence. The difference of course in some ways, is twofold. One is, as I said before, in Sibel's case they invoked the privilege to dismiss the whole case at the outset, and not just to deny us access to particular pieces of evidence. And secondly, there is a great deal of information about Sibel Edmonds' allegations that is now in the public domain and that is available for her to prove her case, and yet the government will just not let us go forward.
Given all of the current information, and especially given the Inspector General's strong confirmation of her retaliation claim, we think there is no justification whatsoever for continuing this fiction of State Secrets, and denying Sibel her day in court. We think the case does have broad implications beyond this particular case, and we have asked the court to accept review because of a sort of widespread confusion over the last fifty years about the scope of the State Secrets privilege.
One of the specific problems, to get a little legalistic for a minute, is that lower courts have often confused the State Secrets privilege with another related doctrine, which is known as the "Totten Doctrine". This is a doctrine which allows for the dismissal of cases at the outset, without even having to invoke the State Secrets Privilege, when the case involves a central fact that cannot be confirmed or denied at all. Now this doctrine was the one that the court considered last term in Tenet vs. Doe, and the court in fact indicta (?) essentially discussed the difference between the State Secrets Privilege and the Totten Doctrine, by saying the Totten Doctrine says there are some unacknowledged covert agents out there, CIA agents, that can never bring any claim against the government, because to engage in any litigation with those agents would be to confirm or deny their existence.
The court distinguished those kind of cases from other cases, even cases involving CIA agents, covert agents, like Webster vs. Doe,, many of you will remember, in which an agent is bringing, for example, a straight forward employment retaliation claim, which can go forward even if there are some secrets involved. There is a way that courts can engage in litigation simply by having the government invoke the State Secrets privilege over narrow pieces of evidence but not by preventing the plaintiff from having any opportunity to go forward in court and try to win her claim.
There are some other cases, as Steve mentioned before, where the government has greatly increased its use of the privilege over the last few years. There are two other cases winding their way through the courts in which the government has invoked the State Secrets privilege at the outset as they have done in this case. One of them is the case of Maher Arar, who is the Canadian who was rendered by the United States illegally to Syria and then tortured. The government has said that his claim that he was unlawfully tortured cannot go forward because the case involves State Secrets privilege.
There's also another case in which the Fourth Circuit recently upheld the broad invocation of the privilege. It is a race discrimination case brought by a man named Sterling, who is a covert CIA agent, but again an acknowledged, not an unacknowledged agent. We are very concerned that if the broad use of the privilege is affirmed by the Supreme Court, or if the lower lower court rulings are left standing, that the government will have every incentive to use the State Secrets privilege in any case that they don't want to litigate, because of embarrassment or wrongdoing, and in which employees are working in secretive or classified environments.
Obviously they have learned that secrecy is an extremely powerful tool for covering up their own wrongdoing and negligence, and we are certainly hoping that the court will step in in this case, and set some reasonable and meaningful limits on the misuse of the privilege.
I want to introduce Sibel Edmonds now, and I would just say I know there's been a lot of talk of course about the characteristics that a new justice on the Supreme Court should have, and I have to say that my own belief is that it is very important that we have justices who understand the impact of their rulings on real lives and real people's lives. I think often we tend to have a very high level abstract concept of the work of the Supreme Court and that they need to understand that this is not just legal theory. It affects people's lives and I think you'll understand why I think that's so important when you hear from my client, Sibel Edmonds. Thanks.
...
(Sibel Edmonds speech. I'm not transcribing that mostly due to time constraints and also that it isn't as relevant to the topic here, but more specifically to her history, etc.)
In the Q/A there was also some very important question and answer that highlights that State Secrets privilege is primarily used only for civil cases and not criminal cases. Ms. Beeson explains it here.
Questioner:
Ms. Beeson, what's different about the State Secrets all or nothing approach that the government's using here, as opposed to the "Classified Information Procedures" Act where you can sort of negotiate with the government and you know you give a little, they get a little, or they hold something back and the judge sanctions them. Is that not available in State Secrets cases?
Ann Beeson:
Well it's an interesting question. I have kind of a somewhat crackpot theory that in fact the State Secrets Privilege should have become defunct when the procedures for classified evidence, classified information were established. In other words, this is a very old privilege, dating back to common law, the common law in Britain. It was often invoked when there was no other way the government could protect the information because they didn't have early on these sort of classified procedures. Now that particular act, CIPA, as it's called, only applies in criminal cases. That's part of the problem. And so there really aren't procedures in civil cases.
The government also takes the position quite strongly that something can be a state secret even if it's not classified. (questioner shown in audience cutaway is shown grinning very sheepishly at this statement.) And that is very much true in this case. In other words, much of the information is very clearly not classified in this case. For example, the nature of Sibel Edmonds's job. And this is where, you know, we keep pulling our hair out because they keep acting as if, and they manage to convince at least two courts now, that the nature of the job of an FBI translator is a state secret. Well that's absurd! I mean any of you can go online right now. Go to the FBI's own web site and read all about exactly what translators do! Right?
Of course its true that some of her job duties involve classified information, but those duties have almost nothing to do with her allegations here. In other words, we don't have to discuss anything having to do with the wiretaps that she was translating, which are classified, in order to prove that the FBI fired her because she reported security breaches. Right? So its an even more dangerous doctrine, I think, because they can invoke it whenever they want. All they have to do is come in, file a declaration and say, "We have designated this information to be a State Secret.", and a lot of courts, just as has happened here, will just defer to the executive claim, and not even look underneath it, to see if it passes the laugh test...
Another Questioner:
It's almost a procedural question, but I haven't seen your petition. Since the Appeals Court hearing was closed, are you even able to present, are you even able to articulate what it is your challenging?
Ann Beeson:
Well, the irony of course is that the thing that was so bizarre that they closed portion of the court hearing that we as Sibel's lawyers participated in, is that I have no access to any classified information whatsoever. I mean I don't have security clearance. I didn't need to have security clearance to represent Ms. Edmonds, because again, none of the issues that are relevant to her case involve classified information. Since I have no access to that information, there was no way I could slip up and disclose anything in open court. It has not prevented me from making arguments on her behalf in that sense.
Obviously the big problem here is that John Ashcroft filed two versions of the declaration in District Court. One was a public version that said essentially nothing. It said "I invoke the State Secrets Privilege. This case can't go forward.". He also filed a classified version of the declaration, and clearly, and it's very long, we do know that its fifty something pages just based on the citations. We have no idea what's in that declaration obviously. And if we did we would be in a much better position to argue on her behalf, so...
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