Sibel Edmonds & the Security Establishment's "A-BOMB" -- the State Secrets Privilege

Sibel Edmonds of the National Security Whistleblowers Coalition spoke of the ordeal the national security establishment whistleblower faces in the post 9/11 environment at a conference held at the National Whistleblowers Center in Washington, D.C.

In her remarks at the National Whistleblowers Legal Defense & Education Fund's National Security Whistleblowers' Seminar on December 11, 2009, Edmonds told of how the Bush Administration used what seminar participant Steven M. Kohn called the federal government's "A-Bomb" - the state secrets privilege - to get her case dismissed.

In addition to Edmonds and Kohn, who serves as executive director of the National Whistleblowers Center, seminar participants were NWC General Counsel David K. Colpainto, attorney Mark Zaid of the James Madison Project, Dr. Frederic Whitehurst, the former F.B.I. agent who successfully blew the whistle on corruption at the Federal Bureau of Investigation's National Crime Lab and who is now head of the NWC's Forensic Justice Project, and former Air Marshal Robert MacLean, who blew the whistle on the Transportation Security Administration.

"Atomic Bomb"

Unlike Fred Whitehurst, Sibel Edmonds lost her case despite having support in Congress, a solid case based on good facts that supported her claims of malfeasance in the FBI's translation operation, and a report from the Office of the Inspector General that validated the fact that she was retaliated against. With this ammunition, she had a good chance of prevailing in whistleblower-connected litigation against the federal government.

She lost her case as the Bush Administration dropped the atomic bomb that trumps the 1^st Amendment and a national security whistleblower's other constitutional rights - the state secrets privilege. It was a trump card that got her lawsuit dismissed by the D.C. District Court.

The state secrets privilege, when invoked by the federal government, effectively obviates a national security whistleblower's constitutional rights, including that of Free Speech, regardless of the merits of their case.

Post-9/11 Environment

Things have changed for the worse since Fred Whitehurst first won national security whistleblowers protections for FBI agents, Sibel Edmonds claimed, as the George W. Bush Administration, in the wake of the 9/11 terrorist attacks on America, used the tragic event to heighten levels of secrecy in the government, as part of its campaign to bolster the national security state. Congress and the courts have abdicated their role as checks on the Executive in the area of national security, she claimed.

Since the Bush 43 Administration declared its war on terror, there no longer are any checks and balances on the federal government in the field of national security. The Executive Branch waves the national security flag, Edmonds said, and Congress and the federal judiciary back off. Even the media, which was given specific protections in the Bill of Rights via the First Amendment, is reluctant to address issues raised by national security whistleblowers.

Edmonds characterized the Executive Branch's assertion of the state secrets privilege as "excessive."

The Edmonds case is a classic example of the new environment for national security whistleblowers. In her case, Edmonds, her attorneys and her supporters in Congress failed to get her redress against retaliation from the federal government or have her serious charges of malfeasance that endangered the security of the United States addressed.

Ultimately, she failed despite having Congressional support and an Inspector General's report that exposed the fact that the government had retaliated against her in a legally proscribed manner. All because the government involved the state secrets privilege.

State Secrets Privilege

To silence Sibel Edmonds, Attorney General John Aschcroft went to Congress and retroactively reclassified all the materials that had been used in her case. Thus, rather remarkably, information that had been on the public record for 2 ½ to 3 years was obliterated by his action, flushed down an Orwellian memory hole. (According to Wikipedia, "The memory hole is a small chute leading to a large incinerator used for censorship in George Orwell's novel, Nineteen Eighty-Four.")

The federal judiciary have signed off on this abuse of the state secrets privilege, Edmonds said. The FBI and the CIA go to a judge, in camera, and claim that the national security whistleblowing case before their court will undermine national security if it goes forward. The court dismisses the whistleblowers' case, despite its merits, without the federal government agency being required to provide evidence that going forward with the case would, indeed, imperil national security.

The quashing of her case, ironically, weakened the national security as the issues she raised were ignored.

Finding a Lawyer

One of the themes of the National Security Whistleblowers' Seminar was it is most important for the national security whistleblower to get representation. The national security whistleblower is outside the system: The Whistleblower Protection Act that safeguards federal government employees who blow the whistle does not cover those in the national security establishment.

According to Sibel Edmonds, it is difficult for national security whistleblowers to find legal representation. Edmonds, in looking for help, did not get a response from the whistleblower organizations she contacted via email. Finally, she found help through the National Whistleblowers Center and the law firm of Kohn Kohn and Colapinto.

National security whistleblowers need to know their rights, she stressed. But the fact is, most whistleblowers have no idea about their rights.

The FBI told Edmonds that she had no right to go to Congress and tell them about the malfeasance she had uncovered, even if it concerned declassified material. The FBI told her that if she did, she would face criminal charges for revealing classified information.

National Whistleblowers Center Executive Director Steve Kohn, who was one of Edmonds lawyers, said that what the FBI told her was wrong. A whistleblower, even one working within the national security establishment, has a right to approach Congress, as long as they go to the right committees and approach the right people: those staffers with the proper security clearance.

This is one reason it is vital to obtain representation, as the attorney specializing in national security whistleblowers cases knows whom to approach, and how to go about it.

Maintaining Optimism

Sibel Edmonds praised Fred Whitehurst, saying that she was impressed by his optimism. It is hard for the national security whistleblower to remain optimistic, she said, as the whistleblower's journey is long and the forces rallied against them are massive.

Mark Zaid of the James Madison Project, who is an attorney specializing in national security whistleblower cases, cautioned that a national security whistleblower can become his/her own worst enemy due to the pressures that they come under. Many whistleblowers become paranoid, as the forces of the federal government are ranged against them.

The problem is that the support system for the national security whistleblower is very small, according to Zaid. The whistleblower's attorney becomes the support system, but the lawyer can wind up becoming emotionally drained.

Zaid counseled that national security whistleblowers need to find a support system outside of the law office of the attorney. A good support system will involve their family, their friends, and their physicians, including mental health professionals.

Zaid also stressed that it was important for a national security establishment employee thinking of blowing the whistle to first obtain legal representation. How they go about blowing the whistle can effect the ultimate outcome of their case, and determine the kind of pressure they will come under.

Steve Kohn praised Sibel Edmonds for creating the National Security Whistleblowers Coalition, which provides a support group for whistleblowers in the security field. Kohn said that while she got "hammered" in her case, Edmonds has done a great deal of good for the national security whistleblower community.

Sources:

American Civil Liberties Union: "Sibel Edmonds: A Patriot Silenced, Unjustly Fired but Fighting Back to Help Keep America Safe"

http://www.aclu.org/national-security/sibel-edmonds-patriot-silenced-unjustly-fired-fighting-back-help-keep-america-safe

National Whistleblowers Center: Sibel Edmonds biography http://www.whistleblowers.org/index.php?option=com_content&task=blogcategory&id=71&Itemid=108

New York Times: "WHISTLE-BLOWING SAID TO BE FACTOR IN AN F.B.I. FIRING" http://www.nytimes.com/2004/07/29/us/whistle-blowing-said-to-be-factor-in-an-fbi-firing.html

NowPublic: "Sibel Edmonds Deposition: Deep Corruption Beneath the Surface"

http://www.nowpublic.com/world/sibel-edmonds-deposition-deep-corruption-beneath-surface

The Times (London): "For sale: West's deadly nuclear secrets"

http://www.timesonline.co.uk/tol/news/world/middle_east/article3137695.ece

U.S. News & World Report: "National Security Watch: FBI whistle-blower petitions high court" http://www.usnews.com/usnews/news/articles/050805/5natsec.htm

Wikipedia: Sibel Edmonds Biography http://en.wikipedia.org/wiki/Sibel_Edmonds

Vanity Fair: "An Inconvenient Patriot"

http://www.informationclearinghouse.info/article9774.htm