During closed oral arguments today before the D.C. Circuit Court of Appeals, the American Civil Liberties Union challenged the government’s “radical theory” that every aspect of FBI whistleblower Sibel Edmonds’ case involved state secrets and therefore could not go forward. The ACLU also filed an emergency motion last night, along with other public interest groups and media outlets, challenging the court’s decision to close the courtroom to members of the press and the general public.
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. Edmonds challenged her retaliatory dismissal by filing a lawsuit in federal court, but her case was dismissed last July after Attorney General John Ashcroft invoked the so-called “state secrets privilege,” and retroactively classified briefings to Congress related to her case.
In January 2005, after significant delay, the Justice Department released an unclassified summary of its Inspector General’s report investigating the circumstances of Edmonds’ termination. According to the summary, the Inspector General report concludes that Edmonds’ whistleblower allegations were “the most significant factor” in the FBI’s decision to terminate her.
“The Justice Department’s own Inspector General has now concluded publicly that the FBI fired Edmonds for reporting agency misconduct,” said Ann Beeson, Associate Legal Director of the ACLU, who argued on behalf of Edmonds today. “Clearly the FBI is using secrecy not to protect national security but to avoid accountability for its own mistakes.”
The state secrets privilege, when properly invoked, permits the government to block disclosure of evidence that would cause harm to national security. In the Edmonds case, however, the government used the privilege to urge dismissal of the entire lawsuit, insisting that every aspect of Edmonds’ case involves state secrets — including where she was born and what languages she speaks.
The state secrets privilege has historically been rarely invoked, and even more rarely employed to dismiss an entire case at the outset. The outcome in Edmonds’ case could significantly impact the government’s ability to rely on secrecy to avoid accountability in future cases, the ACLU said, including one pending case charging the government with “rendering” detainees to be tortured, and another charging racial discrimination by the CIA.
“Edmonds’ case is not an isolated incident,” Beeson said. “The federal government is routinely retaliating against government employees who uncover weaknesses in our ability to prevent terrorist attacks or protect public safety. From firing whistleblowers to using special privileges to cover up mistakes, the government is taking extreme steps to shield itself from political embarrassment while gambling with our safety.”
The court’s surprise move yesterday to close the hearing to members of the press and general public resulted in multiple emergency motions filed last night by the ACLU and other public interest groups, as well as several media organizations including The Washington Post, The New York Times, Reuters America, the Associated Press and The Hearst Corporation. The ACLU said the decision to close the court did not appear to be based on state secrets concerns as it allowed those without security clearance to be present for the arguments. Furthermore, the briefs argued today were already made public when they were first filed in early 2005.
Several 9/11 family member advocacy groups have signed on to a friend-of-the-court brief in support of Sibel Edmonds. Advocates say that if government employees do not report misconduct or security breaches for fear of retaliation, then national security suffers. That brief, along with other legal documents and background materials, is available online at www.aclu.org/whistleblowers.
Co-counsel in the case are: Melissa Goodman and Ben 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.