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WASHINGTON -- The American Civil Liberties Union is urging the U.S. Supreme Court to review a lower court's dismissal of the case of 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 rarely used "state secrets" privilege.
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Sibel Edmonds, a Turkish-American woman, was hired as a translator by the FBI shortly after the terrorist attacks of September 11, 2001 because of her knowledge of Middle Eastern languages. Judge Reggie Walton in the U.S. District Court for the District of Columbia dismissed Edmonds retaliation case, citing the government's ""states secrets privilege."" The D.C. Circuit Court of Appeals upheld that ruling, and on August 4, 2005, the American Civil Liberties Union petitioned the U.S. Supreme Court to hear Edmonds' case.
The Supreme Court created the so-called state secrets privilege more than 50 years ago but has not considered it since. The privilege, when properly invoked, permits the government to block the release in litigation of any material that, if disclosed, would cause harm to national security. The need for clarification of the doctrine is acute because the government is increasingly using the privilege to cover up its own wrongdoing and to keep legitimate cases out of court.
History has shown that the government has relied on the state secrets privilege to cover up its own negligence. In the 1953 Supreme Court case that was the basis for today's state secrets privilege doctrine, United States v. Reynolds , the government claimed that disclosing a military flight accident report would jeopardize secret military equipment and harm national security. Nearly 50 years later, in 2004, the truth came out - 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 government is engaged in a similar cover-up in the Edmonds case. In 2002, at the request of Senate Judiciary Committee members Charles Grassley (R-IA) and Patrick Leahy (D-VT), the FBI provided several unclassified briefings to Members of Congress in which it confirmed many of Edmonds' allegations.
More than two years later, the Justice Department retroactively classified those briefings, which were reported in the Congressional Record, and asked Members who had the information posted on their web sites to remove certain documents. This move was a blatant attempt to bolster the government's efforts to dismiss Edmonds' case on state secrets grounds. After the Project On Government Oversight filed a separate lawsuit challenging the retroactive classification, the Justice Department agreed the information could be distributed.
An unclassified summary of a report by the DOJ's Inspector General, released in January 2005, corroborates Edmonds' allegations . The IG report concludes that the FBI had retaliated against Edmonds for reporting serious security breaches, stating that ""many of her allegations were supported, that the FBI did not take them seriously enough, and that her allegations were, in fact, the most significant factor in the FBI's decision to terminate her services.""
Edmonds' case is not an isolated incident. The federal government is routinely retaliating against government employees who uncover weaknesses in our ability to prevent terrorist attacks or protect public safety.
The states 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.
The outcome in Edmonds' case could significantly impact the government's ability to rely on secrecy to avoid accountability in future cases, including one pending case charging the government with ""rendering"" detainees to be tortured.
We are 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 last April. The appeals court closed the hearing at the eleventh hour without any specific findings that secrecy was necessary.
Fourteen 9/11 family member advocacy groups and public interest organizations filed a friend-of-the-court brief in support of Edmonds case before the District Court, and many are expected to join an amicus brief supporting Supreme Court review of the case, including the National Security Archive.
Edmonds' ordeal is highlighted in a 10-page article in the September 2005 issue of Vanity Fair titled ""An Inconvenient Patriot."" The article, which chronicles FBI wrongdoing and possible corruption charges involving a high-level member of Congress, further undercuts the government's claim that the case can't be litigated because certain information is secret.