What is the State Secrets Privilege? And what is its legitimate purpose if it has one at all? I have on the line Sibel Edmonds, contract translator-turned-whistleblower who worked for the FBI. Her websites are JustACitizen.com and NSWBC.org – that’s the National Security Whistleblowers Coalition – and also James Bamford who was a producer for ABC World News Tonight with Peter Jennings, is the author of The Puzzle Palace, Body of Secrets, and a Pretext For War, as well as many great investigative reports in Rolling Stone and other magazines. I’d like to welcome you both to the show.
Bamford: Thank you.
Edmonds: Thank you Scott.
Horton: The first question is for you Sibel: What is the State Secrets Privilege?
Edmonds: The State Secrets Privilege is an executive privilege that is based on common law – it was never turned into a law by Congress – and it was a privilege that was meant to be used rarely. And that was the case up until a few years ago, before this administration came into power. What happens is, this is when the government comes forward when there is litigation in court and says the facts involved in this litigation would hurt certain State-related secrets. They may be military secrets, or intelligence related, and as I said, this privilege has been abused repeatedly in the past five or six years.
I am the first known case for this administration for the State Secrets Privilege. They invoked it in my case around October 2002, and since then they have invoking it in various cases – the secret detention of El-Masri, and what they did in the case of Maher Arar – and of course, Jim can talk about the invocation of the State Secrets Privilege in the NSA case that took place last year. Jim can you give a more detailed description of the State Secrets Privilege and how it’s being applied as far as these litigations are concerned?
Horton: And I’d like to add to that question Jim, what’s the difference between this and something that has just been classified? Why can’t they just say “Well Judge, that’s classified”?
Bamford: Well, they can say that something is just classified, but that would just apply to one item in a trial. What the administration has been trying to do is use the State Secrets Privilege as a sort of battering ram at the very front-end of a case, so when they as for a judge to issue a State Secrets Privilege order, it basically eliminates any further delving into the case.
And that’s been the problem. That was the problem with Sibel’s case was the fact that she couldn’t even get a hearing in court. For example when her case went to the appeals court, they excluded the press from the court, and they excluded even Sibel and her attorneys from the court – even though they were supposedly hearing their case – they wouldn’t let her defense attorneys hear what the prosecution was going to say – so it’s a bizarre use of this privilege, not just to take a piece of information out of a trial, but to kill a trial entirely.
Horton: Right.
Bamford: And the way it was used in the case that I was involved in – which is the NSA case – was, again, the government came in and tried to have the entire case thrown out because of the State Secrets Privilege, indicating that there were a lot of secrets that would have come out if the case went forward, but the judge decided to hear the case anyway – so we were able to argue our case in the lower court, and also in the appeals court. So the privilege was being used very excessively during Sibel’s case and a few judges have begun to see that this is an abuse by the Justice Department and overruled the Justice Department on using it.
Horton: Okay – now, for some historical perspective: What might be a legitimate use of the State Secrets Privilege in the past?
Bamford: Well, one legitimate use might be there was a spy case a number of years ago where somebody was arrested for espionage and the case was going forward and they could have used the State Secrets Privilege just to remove the one piece of evidence that would have revealed some secrets of the government – how they were conducting some type of secret operation or something. Take the one piece of evidence out of the case, but leave the other evidence in, and let the case go forward. So that’s been done in the past, where they have used it selectively, just to take a piece of the information out, but what the Bush administration has begun doing is using it to take the entire case out, which deprives the defendant of any right to a trial.
Horton: Now, Sibel, is it not the case that the secrets that you know would compromise national security if you were to tell us?
Edmonds: Well, no!
Actually this is exactly what my attorneys at the ACLU argue. For example, we had this public report by the Justice Department’s own Inspector General’s office – they issued an unclassified version of that report which basically vindicated my case – and they wanted to introduce this report into evidence, right, and the government said “No, that is covered by the State Secrets Privilege.” Here is a report, a document that is readily available on the website of the Justice Department, but the Justice Department says “We consider it State Secrets Privilege, and classified.”
Now, they did the same thing with my languages – the languages I speak, they called the nature of those languages as a State Secrets Privilege. They even went further, they said that where I went to school, and the topics of my university studies, they were all covered by the State Secrets Privilege. In fact, where I was born, and the countries I was raised in, they were all considered State Secrets Privilege, which is just absolutely bizarre!
And what is even more troubling is the fact that three judges in the appellate court agreed with it. Here is a government coming in this Kafkaesque situation, and claiming that my languages, my place of birth and even my date of birth, they were all covered by the State Secrets Privilege. And you have three judges sitting on the bench, saying “Okay – we agree with the government. The entire case, and this information, is considered State Secrets Privilege.”
From Two FBI Whistleblowers Confirm Illegal Wiretapping of Government Officials and Misuse of FISA, State Secrets Privilege Was Used to Cover Up Corruption and Silence Whistleblowers, at the National Security Whistleblowers Coalition:
The National Security Whistleblowers Coalition (NSWBC) has obtained a copy of an official complaint filed by a veteran FBI Special Agent, Gilbert Graham, with the Department of Justice Office of the Inspector General (DOJ-OIG). SA Graham’s protected disclosures report the violation of the Foreign Intelligence Surveillance Act (FISA) in conducting electronic surveillance of high-profile U.S. public officials.
Before his retirement in 2002, SA Gilbert Graham worked for the FBI Washington Field Office (WFO) Squad NS-24. One of the main areas of Mr. Graham’s counterintelligence investigations involved espionage activities by Turkish officials and agents in the United States. On April 2, 2002, Graham filed with the DOJ-OIG a classified protected disclosure, which provided a detailed account of FISA violations involving misuse of FISA warrants to engage in domestic surveillance. In his unclassified report SA Graham states: “It is the complainant’s reasonable belief that the request for ELSUR [electronic surveillance] coverage was a subterfuge to collect evidentiary information concerning public corruption matters.” Graham blew the whistle on this illegal behavior, but the actions were covered up by the Department of Justice and the Attorney General’s office.
[...]
The report filed by SA Graham bolsters another FBI whistleblower’s case that became public several months after Graham’s official filing with the Justice Department in 2002. Sibel Edmonds, former FBI Language Specialist, also worked for the FBI Washington Field Office (WFO), and her assignments included the translations of Turkish Counterintelligence documents and audiotapes, some of which were part of espionage investigations led by SA Graham. After she filed her complaint with the DOJ-OIG and Congress, she was retaliated against by the FBI and ultimately fired in March 2002. Court proceedings in Edmonds’ case were blocked by the assertion of the State Secrets Privilege by then Attorney General John Ashcroft, and the Congress gagged and prevented from investigating her case through retroactive re-classification of documents by DOJ. [...]
Edmonds’ complaint included allegations of illegal activities by Turkish organizations and their agents in the United States, and the involvement of certain elected and appointed U.S. officials in the Department of State, Pentagon, and the U.S. Congress in these activities.
Hat tip to Lukery for the links.
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