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March|April 2006
A Watchdog That Didn't Bark By Norman Ornstein
Shareholders Unplugged By Lynn A. Stout
Overprivileged By Francisco Ferreiro

Overprivileged

The executive branch has turned a shield for guarding secrets into a sword for fighting lawsuits—by citing a misleading precedent.

By Francisco Ferreiro

SIBEL EDMONDS WAS FIRED BY THE FBI IN MARCH 2002. She filed a lawsuit to challenge how she was treated and, in 2004, a federal trial judge dismissed the suit on grounds of national security. A 35-year-old, strikingly photogenic Turkish-American, Edmonds has gotten a lot of attention from the media, with appearances on CBS's 60 Minutes, Al Franken's radio show, and many other outlets. While her story has been used to personalize an important legal controversy, the tale's exotic nature has sometimes overshadowed its gravity.

Beginning nine days after September 11 and until she was fired seven months later, Edmonds was a contract linguist for the FBI. According to her, FBI employees responsible for translating documents related to the war on terror had sole access to the original documents and were often overseen by superiors with no knowledge of the language being translated. While the FBI's internal procedures required that a second translator verify every translation, according to Edmonds that "never" happened. Translators determined the relative importance of information, leaving the FBI dependent on its linguists.

To Edmonds, most linguists lacked the ability to grasp the significance of what they were translating. Because analysts and agents could use only what translators deemed important enough to translate, significant information was often overlooked. And since analysts and agents lacked knowledge of the language, they had no way of telling whether translations were accurate.

Edmonds was fired after she told FBI managers she was concerned that many translations were not being properly made. She also said that another linguist, Jan Dickerson, had dealings with a target of an FBI investigation, leaked information to the target, and discouraged Edmonds and other linguists from listening to and translating certain FBI wiretaps.

Edmonds filed her lawsuit because of press leaks that rejected her allegations, discredited her job performance, and revealed her identity and other confidential information about her. The suit was dismissed by federal district judge Reginald Walton, an appointee of President George W. Bush who was previously a longtime judge on the local trial court in Washington, D.C., who found that the government had validly exercised the state secrets privilege "to protect certain classified, national security information that goes to the core of the plaintiff's allegations."

ACCORDING TO JUDGE WALTON, the government can rely on that privilege to avoid releasing information if it can show that disclosure would pose a "reasonable danger" of harm to national security. In a 1983 case involving Daniel Ellsberg, who released the Pentagon Papers to The New York Times and, with others, unsuccessfully sued the government for damages it allegedly caused to them through electronic surveillance without warrants, the federal District Court in Washington, D.C., identified the sorts of harms for which the government is justified in using the privilege. They include impairment of the nation's defense, disclosure of intelligence-gathering methods, and disruption of diplomatic relations with foreign governments.

In Edmonds v. U.S. Department of Justice the government didn't say publicly what risks it sought to avoid. Instead, Walton made his ruling based on classified written statements signed by Attorney General John Ashcroft and FBI Deputy Director Bruce Gebhardt. According to the decision in Ellsberg v. Mitchell, potentially harmful information must be disentangled from harmless information so the public can see the latter. This policy allows a plaintiff to pursue a claim where a separation can be made.

But the statements submitted to Walton said that the harmful and harmless information about Edmonds' lawsuit couldn't be separated, so she had no means of proving her case. Walton dismissed rather than delayed the suit, because, in his view, the delay could last a lifetime. The "imminent threat of terrorism," he wrote in his opinion, "is an endeavor that will consume our nation's attention indefinitely."

In accepting the government's argument, the judge relied on the "mosaic theory." Its premise is that no information is truly harmless because even an innocuous-seeming piece may fit into a larger puzzle that provides clues to enemies of the United States. As part of the preparation for the suit, the government retroactively classified as secret some information that had been publicly revealed to the Senate Judiciary Committee.

The topics discussed included what languages Edmonds translated (Turkish, Farsi, and Azerbaijani) and how the FBI responded internally to her charges (it assigned three linguists to review them). The government said that it sought to quash this information because of the impending civil litigation.

Walton acknowledged that some of the information Edmonds was asking for had already been released to Congress and the press. He relied on case law stating that previously disclosed material could still retain its status as "secret" because, if it were publicly discussed, the information could take on fresh significance.

BETWEEN 1951 AND 1970, the government invoked the state secrets privilege in only five cases, and, in each one, the reasons seemed obvious and were supported by the court. They concerned, for example, an application for a patent dealing with the way an object could escape detection by radar and records of diplomatic negotiations between the United States and Britain and the People's Republic of China.

Between 1977 and 2001, by contrast, there were at least 51 civil lawsuits in which the government successfully claimed the state secrets privilege. Besides being used in many more cases, the privilege has been used in less obvious and sometimes dubious ways. It has been used to protect the FBI files of a sixth-grader, for instance, and the inspection records of a government vehicle involved in an accident. As it appeared to be in the Edmonds case, the privilege has been turned from a shield against dangerous revelations into a sword against civil suits.

The modern standard for the state secrets privilege was articulated by the Supreme Court in U.S. v. Reynolds, a 1953 landmark ruling that is the justices' only substantive examination of the privilege. In October 1948, a B-29 aircraft crashed while testing secret electronic equipment. Six crew members and three civilian observers aboard the plane were killed. The government would not release the results of its investigation, including 51 pages of interviews with witnesses and a narrative of the crash, so the widows of the three deceased civilians sued. The 6-3 majority said the executive branch had the authority to withhold information about "military matters which, in the interest of national security, should not be divulged."

The court's holding turned out to be based on a false premise. Declassified by the Air Force and then discovered in 2000, the accident report contained no state secrets. Instead, it told a story of negligence. The plane had lacked heat shields that were required by regulation, and, without them, it was considered unsafe.

Despite Judge Walton's dismissal of the Edmonds case, a Department of Justice investigation conducted by its inspector general corroborated Edmonds's claims that problems at the FBI led to inaccurate translations. The IG concluded that Edmonds's allegations were "at least a contributing factor in why the FBI terminated her services." The declassified summary of the investigation describes the role and duties of a contract linguist at a level of detail that is difficult to reconcile with the secrecy the government invoked in response to the suit.

In ruling for the executive branch where it has relied on the state secrets privilege in recent cases, the judiciary has relinquished an important part of its constitutional responsibility to check executive power. The premise of the judiciary's view is that the military knows best whether disclosing classified information would jeopardize national security.

While the facts of the Reynolds and Edmonds cases are distinct, they each raise strong doubts about that premise. Scholars who believe that judges should provide some check on the executive have proposed that the government provide courts with summaries of relevant evidence so that judges have something to rely on besides unsupported assertions about risks of harm. The federal rules of civil procedure also provide for review of sensitive information.

Scholars have also recommended that Congress create a code for the judiciary to follow in cases involving the state secrets privilege. In 1973, Congress took the opposite tack and decided that the rules regarding the privilege should be established through case law. The legislative branch conceded its power to the judiciary. Since then, though, the judiciary has conceded much of its power in this area to the executive by relying on a sweeping doctrine from a lone precedent that turned out to be ill-founded. It's time for Congress to try another approach.

Francisco Ferreiro is a law student at Levin College of Law, University of Florida.

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