Government Reveals Its Own Abuse Of States Secrets Privilege

I want to thank Michael Wolsey for first bringing this to my attention, and Luke Ryland has an excellent write-up on this. - Jon

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."