June 9, 2009

 

The Current Battle against State Secrets Privilege

‘Sanitization’ is not the answer

By Sibel Edmonds

 

 

During the past few months I have been actively following the latest activity on the state secrets privilege (SSP). First, I was pleasantly surprised to see that this issue of extreme importance to our civil liberties and constitutional rights was finally getting long-over-due and deserved attention from the media. After all, the memories of fighting SSP in the federal courts all the way up to the Supreme Court, holding press conferences together with the ACLU to bring needed media attention to this draconian abuse, making the rounds in Congress to have them address this ‘privilege’ through legislation to restrict its misuse and abuse, are still fresh and vivid for me.

 

Then I started detecting some troubling common trends showing up in media reports and subsequently in discussions and statements within Congress. The most suspicious of these came in the form of sanitizing major SSP abuse cases from reports put forth by both the mainstream media and some in alternative publications. The first invocation of the SSP by the Bush Administration was in my case. Back then, if you had done a Google search on ‘state secrets privilege’ you would have come up with only ‘7’ results; three of them repeats. After successfully getting away with SSP invocation in my case, the administration opened the flood gates for others. Now I invite you to search all the archived news reports on SSP in the last year or so. As you will see, in every single report in which the abuses of SSP and its history are cited, you will not find this first case; my case. Further, if you were to look for other major abuses of SSP, such as the Barlow Case, you will find none. The valid cases cited are mainly limited to:

 

Khalid Al-Masri, Maher Arar, Al Haramain Islamic Foundation, Binyam Mohamed

 

With a note here and there on ‘NSA’ related information and the historical Reynold’s Case from 1953.

 

Finally, I decided to dig further and explore the reasons behind these significant omissions and the accompanying information spin that seems to be packaged with the intention of  fulfilling Washington’s objective -  seeing the related campaign and activities fail. Of course, based on my own case and experience with SSP, I had my own theories as to why the issue was being narrowed down to certain ‘selected’ cases and interpretations; counterproductive to the objective shared by SSP recipients and organizations who have been truly active in seeking to have it abolished or reformed through congressional legislation. But I was also interested in getting the opinions of those who have been actually involved with these cases, either as plaintiffs or attorneys representing SSP cases, or even a few trusted insiders in Congress with direct knowledge. So I contacted several and include their views and interpretations here. 

 

The Congressional Angle

A well seasoned congressional staff member connected to a well-known ‘Centrist’ office active in the current SSP debate, who ‘insisted’ on being granted anonymity, had the following to say:

Contrary to what they may claim in order to pacify the recent ‘Anti State Secrets Privilege’ movement, the Congress does not want to deal with this issue. And this applies to members of both parties…of course we will hold a couple of hearings and show we have investigated and reviewed cases...

He then went on to list several enlightening points regarding the ‘real’ factors driving the current position on SSP:

·         We are being told that the president [Obama] will veto any proposed legislation dealing with State Secrets Privilege…that and that no one in Congress really wants to touch this area. Having the press limit the information to ‘War on Terror Suspects’ [Emphasis added] helps both: the President and the reluctant Congress.

 

·         The cases before us are ‘selectively’ [Emphasis added] related to the War on Terror. A few Arab guys with their claims will not bring sympathy from the majority in this country. Not in Iowa, not in Utah…you catch my drift?

 

·         …I am talking about cases where there are no questions of ‘Criminality’ being involved or covered up. We won’t touch those cases. No one will go for that. The reasons…obvious… Being unfair or making the wrong call to determine if someone is a terrorist does not constitute ‘criminal.’ [Emphasis Added]. As for the NSA related case, well, the new legislation took care of that…

 

·         By the way, we don’t expect to see any cases of abuses of SSP by the Clinton Administration cited anywhere. Holder’s office in the background and the majority leaders up on the front lines are ensuring this through the media and the NGOs.

Let me recap what is being said, the reality ‘on the ground’ here:

Like any other president before him, and probably those who’ll come after him, President Obama is not going to limit his presidential powers when it comes to this draconian absolute executive power. He has made it clear to his now the majority party members and they are set to follow his guideline on this. It is a slam dunk position with a guaranteed ‘win’ since the minority in Congress also encourages and backs this position.

Somehow the Executive Branch and the Congress have managed to accomplish their objectives on SSP through the U.S. media. They want the reporting massaged and messaged in such a way that the publicity on SSP is limited to only ‘select’ cases where ‘executive criminality’ and or ‘covering up executive criminality’ will not be an issue. Those SSP cases where the executive branch used this level of secrecy to cover up criminal deeds would make the need for Congressional action on SSP far greater. After all, we even have an Executive Order that currently prohibits secrecy and classification from being used by the Executive Branch in order to conceal violations of law. Of course with the case(s) involving NSA warrantless wiretapping, as quoted by the congressional source above, they no longer have to worry, since they took care of it through retroactive legislation.

With cases involving wrongful detention and abuse of those ‘wrongfully accused’ in the government’s war on terror, it has been set up so that these cases can be written off as ‘egregious labeling, handling and treatment’ committed immediately following the September Eleven Attacks. Excuses such as ‘extraordinary’ circumstances, ‘bureaucratic bungling,’ and the previous administration’s ‘excess’ have been all lined up to be used if or when SSP makes it’s way into Congress. Further, the government also counts on bigotry to insure that there will be no major public pressure, since the involved victims are not (at least most) Americans, have Arabic names, and are of Muslim background. They believe that the majority of Americans will not be sympathetic to these plaintiffs, so there will be no problem killing any chance of restraining the long-abused SSP through meaningful legislation.

 

Richard Barlow & the State Secrets Privilege

 

Richard Barlow, an intelligence analyst and a former senior member of the Counter-Proliferation unit at the CIA lost his job when he objected internally to the George H.W. Bush Administration’s misleading Congress over Pakistan’s nuclear program. Following Congress-ordered investigations, the inspector-general at the State Department and the CIA concluded that Barlow had been fired as a reprisal. Further, a final investigation by Congress' own Government Accountability Office completed in 1997 largely vindicated Barlow. The Senate Armed Services and Intelligence Committees concluded that Barlow was due Congressional relief in light of unjustified DOD actions against him and cover-ups with Congress. A relief bill was introduced but the Senate Judiciary Committee referred the bill  the Court of Federal Claims for more "fact finding" in what is known as a Congressional Reference, in which the Congress still remains the deciding body. For more detailed background and related official documents on Barlow see here.

 

On February 10, 2000, in the Barlow Case before the U.S. Court of Federal Claims, CIA signed a declaration and a formal claim of SSP. Separately, in another declaration, Michael Hayden, Director of NSA, also formally invoked SSP. The decision by the Court to accept the government’s broad invocation of SSP prevented Barlow from obtaining needed facts and evidences. With the court proceedings closed to the public, without the ability to present numerous official reports and evidence due to the court’s acceptance of the blanket SSP, Barlow’s case lost in 2002. For more legal background and facts on the court case see the memo by Louis Fisher of the Congressional Research Service.

 

-On ‘executive criminality & cover up’:

 

Top U.S. officials were allowing Pakistan to manufacture and possess nuclear weapons, and the A.Q. Khan nuclear network was violating U.S. laws. Not only that - the same officials were also lying to Congress. They were hiding these activities because the truth would have legally obligated the U.S. government to cut off its overt military aid to Pakistan.

 

-On Partisan Focus & Excluding other Administrations’ abuses:

 

Barlow’s SSP case involved four administrations: Reagan, George H.W. Bush, Clinton, and George W. Bush.

 

The case involved both parties; Democrats & Republicans.

-On Congress’ bigoted view of Public Sympathy:

The invocation of SSP in Barlow’s case can not be easily written off as extreme measures for extreme situations under the ‘war on terror.’

Mr. Barlow was and is an exemplary U.S. citizen, was awarded the CIA's Exceptional Accomplishment Award in 1988, and was considered a patriot for serving America’s interests by Congress and even by the executive branch who went after him.

When I contacted Mr. Barlow and asked for his view on the troubling trend by the media and Congress in packaging SSP related information to mislead the public and destroy any chance of reform, this is what he had to say:

 

"Long before the Congress even begins to address issues relating to the use of SSP in court cases involving private charities, foreigners, suspected terrorists, or any private parties, it clearly needs to first address the use of SSP by the Executive Branch to conceal crimes, abuses, or fraud by the Executive Branch against the Congress itself or against federal intelligence officers or other federal employees [who] are the victims, and especially when it involves issues [of] Congress being lied to or willfully misled regarding intelligence information.

 

He then added the following:

 

"The media must go further than merely reporting the actions and inactions of Congress and the courts: we need investigative reporting on why the Congress has failed to address cover-ups of illegal activity by the Executive Branch and what Members of Congress are responsible for this abdication of Constitutional responsibility, particularly if Obama continues to break his campaign promises on SSP and follow in the footsteps of Bush on this and other national security matters.”

 

Sibel Edmonds & the State Secrets Privilege

I am not going to re-visit the many-times-repeated details of the SSP invocation in my case. The legal outline of SSP abuse by the Bush Administration invoked to cover up ‘criminal’ activities and subsequent cover up of these criminal activities can be found on the ACLU site. According to Ann Beeson, former legal director at the ACLU:

The state secrets privilege should be used as a shield for sensitive evidence, not a sword the government can use at will to cut off argument in a case before the evidence can be presented. We are urging the Supreme Court, which has not directly addressed this issue in 50 years, to rein in the government's misuse of this privilege."

 

In my case the government also used the privilege to exclude members of the press from covering the court proceedings:

 

The ACLU is also asking the Supreme Court to reverse the D.C. appeals court's decision to exclude the press and public from the court hearing of Edmonds' case in April. The appeals court closed the hearing at the eleventh hour without any specific findings that secrecy was necessary.

How does this case fit the Congress’ criteria to exclude?

-On ‘Executive criminality & Covering it Up by invocation of SSP & abuses of classification:

In addition to the Dickerson Case, which was characterized by Senator Grassley as “a very major internal security breach, and a potential espionage breach," and later confirmed by the DOJ-IG (investigation [PDF]), my case also involves espionage activities by several high-level U.S. officials, both elected and appointed. Several elected officials, an official at the State Department, and a few high-level officials in the Pentagon were involved in passing highly classified information to foreign entities connected to Turkey, Pakistan and Israel. Along with the confirmed Dickerson case involving Lt. Colonel Douglas Dickerson - who worked for Douglas Feith and Marc Grossman - other connected officials’ espionage activities were also covered up by invoking SSP.

-On Partisan Focus & Excluding other Administrations’ abuses:

·         The information involved in my case covered the time period 1996-2002. It involved two administrations and two political parties.

 

·         Similarly, information implicating several elected officials in major corruption cases also involved both parties.

-On Congress’ bigoted view of Public Sympathy

·         My case does not fit the ‘War on Terror’ excuse.

 

·         The case didn’t involve a ‘mistaken’ suspect terrorist or suspect organization.

 

·         I, as the plaintiff, was and am a United States Citizen, thus my constitutional rights were directly violated by invocation of SSP.

 

I believe providing background on and an overview of these two relevant and major SSP cases will suffice to establish the reasons behind the intentional sanitization of SSP media coverage and other reports - so far successfully achieved by the executive branch and the Congress.

 

The recent ‘supposed’ leak of a report by the Congressional Research Service on SSP under the title of “The State Secrets Privilege and Other Limits on Litigation Involving Classified Information” is a very appropriate example:

 

The Congressional Research Service has prepared a new account of the state secrets privilege, which is used by the government to bar disclosure of certain national security information in the course of civil litigation.  While the CRS report contains nothing new, it is a detailed, dispassionate and fairly comprehensive account of the subject.  A copy was obtained by Secrecy News.

 

Assuming that this report in fact was leaked (my congressional sources claim otherwise, but I couldn’t substantiate it definitively.), I invite the readers to review the ‘analyzed’ and ‘cited’ cases. Please carefully review the citations, and take note of the cases taken into examination, especially those since 2000. Here is the list:

 

Al-Haramain Islamic Fund v. Bush, El-Masri v. US, Mohamed v. Jeppesen Dataplan

 

Not surprisingly, the ‘leaked’ report intended for Congress based on the ‘latest’ anti State Secrets Privilege movement’s pressure on Congress to act, meets the ‘qualification’ criteria.

 

I contacted Mark Zaid, a Washington attorney who has represented many plaintiffs in SSP cases, including me, and this is what he had to say:

 

"The abuse of the privilege extends beyond protecting Bush Administration policies; it is often focused on covering up institutional misconduct and embarrassment that transcend political lines."

 

Regarding the latest media coverage, mainstream and alternative, and their either naïve or agenda-driven case selections Mr. Zaid states:

 

This provides an incomplete portrait of the dangers of the invocation of the privilege and in some ways fosters further abuse."

Based on the ‘sanitization’ criteria as explained by the quoted congressional staff member, it is obvious why the major SSP cases provided above ‘could not’ be included in any potential/future congressional discussions and or hearings. These cases cannot be quickly written off under the excuses of ‘war on terror’ or ‘bureaucratic bungling.’ The inclusion of them would make it difficult, if not impossible, for Congress to shrug off SSP and let its abuses continue. The coverage of these cases would likely garner outrage by the public majority regardless of political partisanship.

What is not obvious is how the press, both mainstream and alternative, has come to implement these shrewd political objectives, serving both the Congress and the executive branch. As for the mainstream media it doesn’t come unexpected. We have gotten used to it; whether from their record and coverage in leading us to war in Iraq, or the latest revelations of their inner workings when it came to the NSA warrantless wiretapping of Americans.

However, I am not ready to attach the same cynical but realistic agenda to the alternative press. The reasons may be as simple as pure ignorance, naivety, myopic partisanship, or simply stupidity. Whatever the reasons, the likely consequences of them playing into the hands of the political establishment and their agenda is to help us lose the battle against SSP when we seem to finally have momentum and a strong movement to address this draconian abuse once and for all through sound legislation with teeth.

Cross posted at 123 Real Change BlogSpot for discussion.

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Sibel Edmonds is the founder and director of National Security Whistleblowers Coalition (NSWBC). Ms. Edmonds worked as a language specialist for the FBI.  During her work with the bureau, she discovered and reported serious acts of security breaches, cover-ups, and intentional blocking of intelligence that had national security implications. After she reported these acts to FBI management, she was retaliated against by the FBI and ultimately fired in March 2002. Since that time, court proceedings on her case have been blocked by the assertion of “State Secret Privilege”; the Congress of the United States has been gagged and prevented from any discussion of her case through retroactive re-classification by the Department of Justice. Ms. Edmonds is fluent in Turkish, Farsi and Azerbaijani; and has a MA in Public Policy and International Commerce from George Mason University, and a BA in Criminal Justice and Psychology from George Washington University. PEN American Center awarded Ms. Edmonds the 2006 PEN/Newman's Own First Amendment Award.