Please call the offices of Congressmen Waxman - (202) 225-3976 - and Conyers - (202) 225-5126 - demanding open hearings into Sibel Edmonds' case and the State Secrets Privilege.
The Need for Hearing on State Secrets Privilege
By William Weaver
The state secrets privilege is ripe for a hearing. The NSA surveillance cases, extraordinary rendition cases of Maher Arar and Khalid el-Masri, the recent assertion of the privilege by the New York Times in a defamation case, and numerous other uses of the privilege have constantly been in the news for the last couple of years. But I want to explain why the Committee on Government Reform should hold the hearing and the reasons that focusing on Sibel’s case is the best way to open up this issue.
To begin, let me give a little background. The state secrets privilege did not exist in United States law until 1953, when the U.S. Supreme Court decided U.S. v. Reynolds. Prior to that case there were really only two cases that bear on the issue in any serious way. The first was the trial of Aaron Burr for treason and the second was Totten v. U.S. Neither of these cases were state secrets cases. The term “state secrets” is mentioned in the Burr case, but there was never a refusal to provide documents to the court based on grounds of national security. Indeed, President Jefferson handed over the requested documents. Louis Fisher of the Library of Congress has made a careful examination of this case, concluding that it was not a state secrets matter.
Totten concerned a contract for spy services engaged in by one William Lloyd for the Lincoln administration. The executor of Lloyd’s estate sued for breach of contract, and the Supreme Court created an exception in recovery on contract where the service contracted for by the federal government included spying. Until Reynolds, when it was assumed to be subsumed by the state secrets privilege, Totten was merely treated as an exception to recovery on breach of contract.
In Reynolds, the Court adopted a rule of evidence from English common law during the height of the Cold War and applied it to federal courts. It explicitly created a secrecy privilege, but the case shows little evidence of serious thought on the part of the majority. The opinion, a 6-3 ruling, is only a few pages long with Justices Black, Frankfurter and Jackson dissenting. So why is this such a big deal and deserving of a hearing?
Need for Hearing:
First, the adoption of the state secrets privilege created enormous power in president. This power did not come from the Constitution, but from a common law rule of evidence adopted by six members of the U.S. Supreme Court. The privilege has never been approved by Congress. Congress debated codification of the privilege in Federal Rule of Evidence 509 in the late 1960s and early 1970s, but the proposed rule failed.
Presidents used the privilege sparingly up to the mid-1970s, but use has accelerated dramatically since the Carter presidency. Emboldened by a lack of congressional interference and undue deference paid to the privilege by courts, the privilege is no longer solely referred to as a common law based evidentiary privilege – it is now characterized by the executive branch as an inherent Article II power. Presidents have seized on a rule of evidence and transformed it into an executive prerogative.
Second, the claimed constitutional basis for plenary presidential control of national security information, unchallenged by Congress, makes effective oversight of much executive branch activity nigh impossible. Presidents have claimed for at least the last thirty years that control of national security information is constitutionally committed to the presidency and to no other branch of government. But with the expansion of governmental secrecy comes a concomitant diminution of congressional power to check executive branch abuses of authority. Congress has denuded its oversight authority by abnegating any power over the creation, use, and access to national security information. Congress has the authority to adopt statutes affecting and changing the Federal Rules of Evidence, and therefore has the power and the duty to circumscribe abuse of the state secrets privilege. While such proposals directly affecting the Federal Rules of Evidence would need to originate either with the federal judiciary or the judiciary committees, it is well within the purview of Government Reform to examine the way the privilege affects oversight and what may be done to correct misuse of the privilege. Government Reform has oversight authority concerning expenditure of public funds and the legality and felicity of agency actions with respect to federal civil service matters.
Third, the state secrets privilege is at the heart of the executive branch’s claims to control of classified information. If Congress wants to reclaim authority for oversight of abuses that occur in national security venues, or even just wants to send a message of a shift away from past acquiescence, this is the place to start.
Sibel Edmonds’ Case is the Avenue to Open Up This Issue:
Sibel Edmonds’ case is the best case to orient the hearing. This is not a self-serving argument, for there are several features in Sibel’s case that are not present in other cases. Other cases should be presented and analyzed at any hearing, but Sibel’s case should be the anchor.
First, unlike other cases, much of the background of Sibel Edmonds’ case has been made public. The facts concerning most state secrets cases remain secret. Indeed, one can expect the executive branch to exert pressure to have a hearing on the privilege quelled for reasons of national security. But Edmonds’ case is more of an open book than other cases, due to the extensive media coverage it received.
Second, Edmonds’ has the rare distinction of having had her claims corroborated by an inspector general. The Department of Justice Inspector General report in her case is a slam dunk in her favor. I cannot think of any other case involving the state secrets privilege where such a thing has occurred.
Third, Edmonds’ case is “fresh” – it occurred during the present administration and highlights the abuses of authority taken by Bush administrators.
Fourth, the use of the privilege in Sibel Edmonds’ case reached ridiculous heights. Her date of birth, the languages she speaks, and where she went to school, for example, were all covered by the privilege with the express approval of a federal judge. Things she could discuss at a Starbucks over coffee were prohibited from being given in evidence.