By William Fisher
As whistleblower Sibel Edmonds asked the Supreme Court to review her dismissed case against the Federal Bureau of Investigation (FBI), mainstream media continues to refer to the government’s defense – the so-called State Secrets Privilege – as “rarely used”. In fact it has been used over sixty times since its creation in the 1950s.
The State Secrets Privilege is a series of American legal precedents allowing
the federal government the ability to dismiss legal cases that it claims would
threaten foreign policy, military intelligence or national security.
A relic of the Cold War, it has been invoked several times since the Sept 11th 2001 attacks on the World Trade Center and the Pentagon. Judges have denied the privilege on only five occasions.
It was used against Sibel Edmonds, a former FBI translator, who was fired in retaliation for reporting security breaches and possible espionage within the Bureau. Lower courts dismissed the case when former Attorney General John Ashcroft invoked the state secrets privilege.
The American Civil Liberties Union (ACLU), which has filed a friend-of-the-court brief in the Edmonds case, says there is an “acute” need for clarification of the state secrets doctrine “because the government is increasingly using the privilege to cover up its own wrongdoing and to keep legitimate cases out of court.”
The first case in which the state secrets privilege was invoked came in 1953. Widows of airmen killed in the crash of a military aircraft sued the government for details. The government claimed that disclosing a military flight accident report would jeopardize secret military equipment and harm national security.
It was not until nearly 50 years later, in 2004, that it was revealed that 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 state secrets privilege was used again in 2002 in the case of Notra Trulock, who launched a defamation suit against Los Alamos scientist Wen Ho Lee, a Taiwanese American computer scientist who had been charged with stealing nuclear secrets for China from the Los Alamos National Laboratory in New Mexico.
President George W. Bush said national security would be compromised if Trulock were allowed to seek damages from Lee. Though it resulted in the case being dismissed, another suit was launched directly attacking then-FBI Director Louis Freeh for interfering and falsely invoking the State Secrets Privilege.
Reluctant to go to trial, the government worked out a plea bargain with Lee, who had been imprisoned for 278 days in solitary confinement. Lee pled guilty to improper handling of classified data and cleared of all charges relating to espionage. Lee was arrested in December 1999 and freed in August 2000.
Judge James A. Parker offered an apology to Lee for what he called "abuse of power" by the federal government.
The government invoked the privilege again in the case of Maher Arar, a Canadian citizen who sought to sue then Attorney General John Ashcroft for his role in rendering Arar to Syria to face torture and extract false confessions.
Former Deputy Attorney General James B. Comey said in legal papers filed at the time that “Litigating [the] plaintiff's complaint would necessitate disclosure of classified information."
Arar, who was born in Syria, was detained at New York John F. Kennedy Airport in 2002, on his way back to Canada from North Africa. He was held incommunicado by U.S. immigration authorities, and eventually “rendered” to Syria, where he was imprisoned for close to a year and claims he was tortured. He was released without charges.
The Arar case is being appealed to the U.S. Supreme Court, and is also being investigated by an independent Canadian commission, with which the U.S. has refused to cooperate.
Barbara Olshansky, the assistant legal director of the Center for Constitutional Rights, which is representing Arar, said that government lawyers “are saying this case can’t be tried, and the classified information on which they’re basing this argument can’t even be shared with the opposing lawyers. It’s the height of arrogance—they think they can do anything they want in the name of the global war on terrorism.”
Again, in August 2005, a Federal Appeals Court affirmed the dismissal of a racial discrimination lawsuit against the Central Intelligence Agency (CIA) based on the Government’s invocation of the state secrets privilege.
Jeffrey Sterling, an Operations Officer with the CIA in its Near East and South Asia Division from 1993-2001, claimed he was told he was “too big and black” to receive certain CIA assignments, and that CIA management placed expectations on him “far above those required of non-African-American Operations Officers.” He also contended he was retaliated against for using the CIA’s internal equal employment opportunity process.
However, the court noted, “There is no way for Sterling to prove employment discrimination without exposing at least some classified details of the covert employment that gives context to his claim.”
The privilege was first invoked against Sibel Edmonds to prevent her from testifying that the Federal Government knew that Al-Qaeda intended to use airliners to attack the United States in 2001. The case was a $100 trillion action filed in 2002 by six hundred victim's families against officials of the Saudi government and prominent Saudi citizens.
Edmonds, a former Middle Eastern language specialist hired by the FBI shortly after 9/11, was fired in 2002 and filed a lawsuit later that year challenging the retaliatory dismissal. An unclassified public report by the Department of Justice (DOJ) Inspector General contains much of the information the DOJ now seeks to block. The report concluded that Edmonds' whistleblower allegations were "the most significant factor" in the FBI's decision to terminate her.
Steven Aftergood, who heads the Project on Government Secrecy for the American Federation of Scientists, says, “Once rarely invoked, the state secrets privilege is now increasingly used by the government as a "get out of jail free" card to block unwanted litigation. The idea that courts cannot handle national security cases involving classified information is simply false. Classified information often figures in criminal espionage cases, and even occasionally in Freedom of Information Act cases. There are procedures for in camera review, protective orders, non-disclosure agreements, and so on.”
He adds, “In the same way, sensitive classified information could be protected in the current cases where the state secrets privilege has been invoked -- without shutting down the entire proceeding. As a society we should be seeking to expand the rule of law, not to carve out more areas where the government is immune to judicial review.”