Friday, August 24, 2007

FBI divulges secrets in Sibel Edmonds case.

I recently wrote a post called "FBI, Congress: Sibel Edmonds case 'unclassified'" where I highlighted the fact that, for months, the FBI and Congress openly discussed the details of former FBI translator Sibel Edmonds' case in unclassified settings, with participants who did not have security clearances. That is, none of the participants, including high level Counter-Intelligence agents, considered that the information was 'secret.'

It was only later that Attorney General John Ashcroft decided that he needed to protect certain criminals (high level US officials at the Pentagon and State Department), and he slapped the State Secrets Privilege across the case.

In an apparent about-face, attorneys from the FBI and Dept of Justice have been discussing previously-classified elements of the case and placing it on the court record.

Is the information now declassified? Will the attorneys be prosecuted for harming national security? Is the State Secrets Privilege a scam? Will Sibel Edmonds be allowed to tell all?


You may remember the bizarre hearings from last week on the NSA illegal spying / State Secrets case which gave us this memorable exchange (from Wired's liveblogging):

Judge Hawkins wonders if the document is really that secret?

"Every ampersand, every comma is Top Secret?," Hawkins asks.

"This document is totally non-redactable and non-segregable and cannot even be meaningfully described," (Assistant U.S. Attorney General) Bondy answers.


Judge McKeown: "I feel like I'm in Alice in Wonderland."

(Plaintiff's attorney) Eisenberg: "I feel like I'm in Alice in Wonderland, too."

(see the Toldeo Blade's When secrets are secret' for more ludicrousness)

The reason that the USG needs to argue that "Every ampersand, every comma is Top Secret" and that the whole information is "non-redactable and non-segregable" is because the State Secrets Privilege (SSP) was originally constructed to exclude certain pieces of information from public disclosure in court actions in case the disclosure of those particular elements might harm national security interests by exposing certain justifiable State Secrets (sources and methods etc). The intent was never to use the SSP to shut down entire cases.

To get around this 'problem,' some government lawyer-types came up with a concept called the Mosaic Theory in which they argue that they can't disclose anything because foreign enemies might be able to put all the apparently disparate pieces of the 'mosaic' together and come and kill us all.

However, in actual usage the Mosaic Theory is used by governments to throw a blanket of secrecy over entire cases in order to cover-up their own criminality. In the NSA case, they need to argue that 'every ampersand' is protected and that everything is 'non-segregable' because once we start sliding down the slippery slope of actually identifying which elements of the case are legitimate secrets and which elements are covering up criminality, then the criminals within the government will be exposed and convicted.

And so it is in Sibel Edmonds' case.

The government has to argue that even the most mundane minutiae - including her date of birth - is a State Secret, and that everything about her case (actually, she's still permitted to use her name and state that she lives in the US) is 'non-segregable' because otherwise they'd be forced to explain/defend other elements of the case which can prove that high-level US officials are engaged in various criminal activities which can't be defended on legitimate grounds of national security / state secrets.

To put it more simply, they have to say 'everything is classified' otherwise they'd be in prison.

So this brings us back to the latest news. For five years the USG has said that 'everything' pertaining to Sibel and her case has been classified as a State Secret. This SSP has meant that Sibel hasn't been able to move her own case forward in the courts, and has also scared off Congress from doing anything about the case.

However, in recent depositions, FBI and DoJ attorneys have been openly discussing various items which were previously designated State Secrets under the SSP.

What say you, law-and-order types? Divulging State Secrets is treason, no?

National Security Whistleblowers Coalition statement:


Department of Justice, Which Claimed State Secrets Required Termination of Whistleblower Suit, Now Relies on Same "Secrets" to Avoid Tort Liability

Department of Justice and FBI attorneys, during recent depositions taken in FBI whistleblower Sibel Edmonds’ Federal Tort Claims case, Civil Action NO. 1:05-CV-540 (RMC), questioned witnesses regarding information previously designated "state secrets" by the Attorney General.

In April 2004, the Justice Department succeeded in preventing Edmonds from testifying in a lawsuit related to the September 11 terrorist attacks. The law firm of Motley Rice, representing September 11 family members, had subpoenaed Edmonds for a deposition, but the government argued that information provided by Edmonds "would cause serious damage to the national security and foreign policy interests of the United States." By invoking the state secrets privilege and citing classification concerns, the government quashed the subpoena, and even seemingly innocuous questions regarding Edmonds’ birth place, her date of birth, her languages, even her position as a translator with the FBI, were deemed covered by the state secrets privilege. To view the information classified in the Motley Rice subpoena Click Here

Other Court proceedings in Edmonds’ case were also blocked by the assertion of the state secrets privilege, and the Congress was gagged and prevented from investigating her case through retroactive re-classification of documents by DOJ. In May 2004, the Justice Department retroactively classified Edmonds' briefings to Senators Grassley and Leahy in 2002, as well as FBI briefings regarding her allegations. The congressional gag applied to all information related to Edmonds’ case, including the interrogation and arrest warrant issued for her sister in Turkey as a result of a leak regarding Edmonds’ monitoring of certain foreign targets of the FBI. To read the timeline on Edmonds’ case Click Here.

During recent depositions conducted by the Justice Department in a lawsuit filed by Edmonds under FTC, Department of Justice and FBI attorneys, Dan Barish and Ernest Batenga, questioned witnesses on and discussed information that was previously declared state secrets. This information was communicated on the record in the presence of parties who did not have security clearance. Information such as the nature of Ms. Edmonds’ work with the FBI, the specific FBI units where she performed translation, FBI target countries, the arrest warrant issued by the Turkish government for Ms. Edmonds’ sister, and congressional letters regarding the consequences of Dickerson’s espionage case in Turkey and here in the U.S., all of which were retroactively classified by the Justice Department, was discussed and put in the court record.

Edmonds’ responded to this recent development: “The Department of Justice has now confirmed what we knew all along: it is abusing the state secrets privilege to avoid accountability, not to protect national security. How can it be that the very same information is a state secret when it would assist plaintiffs suing the government, but not a state secret when it would assist the government in defeating plaintiffs? It's long past time for Congress to put an end to the government's misuse and abuse of the state secrets privilege."

Currently Edmonds, her attorneys, and civil liberties group are reviewing this latest disturbing development and its implications on other SSP and government secrecy cases. The law firm Motley Rice has also been notified since their case is still active.

The following quotes are from legal experts and government watchdog organizations:

“This latest revelation proves that throwing Ms. Edmonds’ case out of court was a travesty and a ploy, because no state secrets would have been revealed,” said David K. Colapinto, General Counsel for the National Whistleblower Center. “If the courts won’t prevent the government from using the State Secrets Privilege as a trump card to cover-up agency wrongdoing and to defeat meritorious claims, like Ms. Edmonds’ whistleblower case, then Congress must act to stop this odious practice,” Colapinto added.

"These latest revelations are indicative of the arbitrary and self-serving and excessive use of the state secrets privilege by the Executive Branch in order to defeat specific cases of concern at the time," said Mark S. Zaid, a Washington, D.C. attorney who served as counsel to Sibel Edmonds during her state secrets litigation and who has handled several such cases. “This is just another example of why either the Judiciary needs to aggressively challenge state secret assertions by the Executive Branch or Congress needs to intervene and legislatively limit the government's ability to utilize the privilege,” added Zaid.

"This proves the point we have been making all along,” said Michael D. Ostrolenk, National Director of the Liberty Coalition. "The use of the state secrets privilege against Mrs. Edmonds is not about protecting true national security. The government was not created to protect itself and various political and financial interests but to secure Americans rights.

Nancy Talanian, Director of Bill of Rights Defense Committee, stated "The DOJ's opportunistic classifying and divulging information raises suspicions about its motivation for using State Secrets to silence Ms. Edmonds. Now that the classified information has been revealed, it is time for Ms. Edmonds to have her long-awaited day in court." (emphasis mine)

This youtube is from a recent speech Sibel gave describing the abuse of the SSP

The National Whistleblower Center also issued a statement:
National Whistleblower Center Joins Coalition in Calling For An End To "State Secrets" Abuses

The National Whistleblower Center, along with a broad coalition of liberal, libertarian and conservative groups including the American Civil Liberties Union, the National Security Whistleblowers Coalition, and the Liberty Coalition, condemns the Government's abuse of the State Secrets Privilege in the case of Federal Bureau of Investigation (FBI) Whistleblower Sibel Edmonds, and calls for swift action by Congress and the courts to stop this abuse.
On August 23, 2007, it was revealed that the Justice Department recently publicly revealed information that it had claimed was "privileged" and "secret" in Ms. Edmonds' case. The DOJ's recent actions show that it abused the State Secrets Privilege in Ms. Edmonds' whistleblower case in order to convince the court to dismiss her case.

NWC President, Stephen M. Kohn, issued the following statement in support of Ms. Edmonds:
"...the government used that alleged 'privilege' to have her case thrown out of court and cover up FBI wrongdoing. The government abused a 'privilege' to undermine constitutionally protected free speech and ignore an Inspector General's findings of retaliation..."

(Full NWC statement.)

Let Sibel Edmonds Speak
Call Embarrass Waxman. Demand public open hearings:
DC phone: (202) 225-3976
LA phone: 323 651-1040
Capitol switchboard phone: 800-828-0498

(let me know if you want to be added to my email list which announces whenever I have a new Sibel-related post. Subject: 'Sibel email list')

1 comment:

Decline and Fall said...

I can't believe I'm only just hearing about this. Yes, please add me to your list.