ACLU Charges That Government is Abusing "States Secrets Privilege" to Cover Up National Security Blunders, ACLU Says
"The government should be applauding, not punishing, employees who risk their jobs to expose threats to our nation's security," said ACLU Associate Legal Director Ann Beeson in the ACLU's press release on this matter. "If the lower court ruling stands, many thousands of government employees will be unprotected from retaliatory dismissal, with no recourse in the courts, and others will be even less willing to risk exposing misconduct or corruption."
Edmonds, a former Middle Eastern language specialist hired by the FBI shortly after 9/11, was fired in 2002 after repeatedly reporting serious security breaches and misconduct in the agency's translation program. She challenged her retaliatory dismissal by filing suit in federal court. Last July, the district court dismissed her case when Attorney General John Ashcroft invoked the so-called state secrets privilege. The ACLU is representing Edmonds in the appeal.
The ACLU has announced its willingness to support other national security whistleblowers and has encouraged others to come forward. Notable whistleblowers such as John M. Cole and Frederic Whitehurst support Edmonds' case, as do several senators, the families of 9/11 victims, the Project On Government Oversight and a long list of others. Many of them will be joining a friend-of-the-court brief to be filed later this month. Representatives of these groups will be present at a noon news conference at the National Press Club on Wednesday, January 26.
In its brief, the ACLU sharply criticizes the government's "radical theory" that every aspect of the Edmonds' case involves state secrets and therefore it cannot go forward. In accepting the government's theory, the ACLU said, the district court relied on the government's secret evidence but denied Edmonds the opportunity to prove her case based on non-sensitive evidence. That approach, the ACLU said, "made a mockery of the adversarial process and denied Ms. Edmonds her constitutional right to a day in court."
"As a U.S. citizen, I am disturbed that my government is imposing such severe punishment on truth tellers," Edmonds said in a prepared statement to the press. "I am pursuing this appeal not only on my own behalf but on behalf of government employees everywhere who understand that nothing is more important than protecting our security."
The state secrets privilege, when properly invoked, permits the government to block disclosure of particular documents that would cause harm to national security. In the Edmonds case, the government used the privilege not just to protect particular documents but to urge dismissal of the entire case.
History has shown that the government has relied on the state secrets privilege to cover up its own negligence. In the 1948 Supreme Court case Reynolds v. United States, the government claimed that disclosing a military flight accident report would jeopardize secret military equipment and harm national security. Nearly 50 years later, in 2004, the truth came out--the accident report contained no state secrets, but instead confirmed that the cause of the crash was faulty maintenance of the B-29 fleet.
The government is engaged in a similar cover-up in the Edmonds case, the ACLU said. In 2002, at the request of Senate Judiciary Committee members Charles Grassley (R-IA) and Patrick Leahy (D-VT), the FBI provided several unclassified briefings to Members of Congress in which it confirmed many of Edmonds' allegations.
More than two years later, the Justice Department retroactively classified those briefings, which were reported in the Congressional Record, and asked Members who had the information posted on their web sites to remove certain documents. The ACLU said the move was a "blatant attempt to bolster the government's efforts to dismiss Edmonds' case on state secrets grounds." The retroactive classification has also been challenged in a separate lawsuit brought by the Project On Government Oversight.
Only two weeks after the district court dismissed Edmonds' case, FBI director Robert Mueller wrote a letter to Senator Grassley reporting that the Department of Justice Inspector General had completed a classified investigation and concluded that Edmonds' allegations "were at least a contributing factor in why the FBI terminated her services."
Later this week, in response to a separate Freedom of Information Act lawsuit, the Inspector General is expected to release an unclassified version of the report's executive summary. The rest of the report will remain classified.
Oral argument in Edmonds' case' is scheduled for April 21, 2005. Ann Beeson will be arguing on behalf of Edmonds. Co-counsel in the case are: Melissa Goodman and Benjamin Wizner of the national ACLU; Art Spitzer of the ACLU of the National Capital Area; Mark Zaid of the Washington law firm Krieger and Zaid; and Eric Seiff of New York.
The ACLU brief is online here.
An October 28, 2002 news release from Sen. Grassley's office in support of Sibel Edmonds, with links to his letter to FBI Director Mueller and the transcript of a "60 Minutes" interview, is online here.
A website about Edmonds' case is online here. Nearly 7,000 people have already signed an online petition in support of her case.
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This story was published on January 15, 2005.