Sibel Edmonds Fights to Testify

Bradblog has the latest.

The FBI and the Dept of Justice are trying to block Sibel from testifying, asserting that:

Edmonds is under “no compulsion” to testify in the Krikorian case and the FBI asserted that she, “does not have approval for any disclosure of any information.”

Sibel's lawyers responded that:

"the objections raised so far by the agency are not sufficient to block Edmonds' from "truthfully answer[ing] questions while under oath pursuant to a lawful subpoena" on Saturday morning in D.C. as scheduled.

Their press release [PDF], to be issued publicly later today, accuses the FBI and DoJ of attempting "censorship" and trying to "silence [a] whistleblower"."

Bradblog reports:

Edmonds told The BRAD BLOG today that she "absolutely intends to answer any questions, unless it's about intelligence gathering or informants." But, since "that has nothing to do with this case," she didn't anticipate any such questions.

She did say, however, that she was "obligated to respond to any questions that come out about any of the people in the 'State Secrets Privilege Gallery'". The "State Secrets Privilege Gallery" referenced is a webpage of unnamed photographs --- featuring current and former Congressmembers, high-ranking State and Defense Dept. officials, as well as lobbyists and agents from Turkish public interest groups --- which Edmonds posted in 2007. The names of most of those officials, and their ties to Edmonds own whistleblower case, has been detailed by Edmonds expert Luke Ryland here. Some of the names, said to have been illegally tied to Turkish influences, include former Speaker of the House Dennis Hastert (R-IL), Congressmen Dan Burton (R-IN), Roy Blunt (R-MO), Stephen Solarz (D-NY), as well as Bush Administration officials such as Richard Perle, Marc Grossman, Douglas Feith and others.

Bradblog continues:

Edmonds told The BRAD BLOG this afternoon that she believes she has an obligation to respond to questions raised during the deposition.

"This is not about being idealistic or heroic," she told us. "I am responsible to inform the citizens, and these people's constituents about who they're voting for. I'm responsible to the citizens of this country and the Constitution. I'm going to do my best answer to those citizens, especially when it comes to important issues of the Constitution."

The DoJ and the FBI have a few possible options, including re-invoking the State Secrets Privilege. Unless they actively move to block the testimony, it is scheduled to proceed at 10.30AM Saturday.

Cowboy words in a lawyer's voice.

Sibel has a new post up at her blog, Two Sides of the Same Coin... Heads-Heads, about Obama's positions on the State Secret Privilege, warrantless wiretapping, accountability on torture, the military commissions and the war in Afghanistan.

Sibel's post ends thusly:

What I want the readers to do is to read the extremely important cases above, step back in time to those un-ending campaign trail days, and answer the following questions:

How would Senator McCain have acted on these same issues if he had been elected? How would Senator Hilary Clinton? Do you believe there would have been any major differences? Weren't their records almost identical to Senator Obama's on these issues? If you are like me, and answer 'same,' 'same,' 'no,' and 'yes,' then, why do you think we ended up with these exact same candidates, those deemed 'viable' and sold to us as such?

With too much at stake, too many unfinished agendas for the course of our nation, and too many skeletons in the closet in need of hiding for self-preservation, the 'permanent establishment' made certain that they took no risk by giving the public, via their MSM tentacles, a coin that no matter how many times flipped would come up the same - Heads, Heads.

The Daily Show touched on this on Friday. Regarding Obama's mimicking of Bush's actions (and rhetoric), Jon Stewart says

"Obama has got a good trick: the trick is to use cowboy words in a lawyer's voice"

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Obama on State Secrets, again

As I expected yesterday, there was a lot of buzz about the State Secrets question in Obama's presser today - some of it more favourable than others.

Michael Scherer from Time, who asked the question, wrote about it here. Glenn Greenwald has a predictable response here. CJR had a good response here - they quote the ACLU's Ben Wizner saying:

“I’m just delighted that Time magazine thought it was worth asking the question,”

and

“If he wants to put that gloss on it, that it was a mistake, that it was hasty, all the better.... We welcome it.”

(I presume that was original reporting, because I can't find a press release from Wizner.)

I agree with both of Wizner's points.. And I also agree with the criticism Obama's response received because he, you know, lied - but the important thing, I think, is that he apparently felt that he needed to walk back from an embarrassing and unsustainable position. That is good news.

Of course, the proof will be in the pudding - but in many ways, it is actually good news that he lied about the situation (and the subsequent media coverage) - because that will mean that any future decisions that Obama, Craig and Holder make about the State Secrets Privilege will be under intense scrutiny.

And of course, given my particular interest in all of this, the Obama DoJ needs to retroactively review cases of SSP abuse, and Obama will be judged on the DoJ's response to the Ben-Ami Kadish case, the Rosen/Weissman/AIPAC case, as well as the Harman/AIPAC case.

It should be an interesting couple of months. Things seem to be escalating from all angles.

(BTW - Nobody seemed to notice my analysis of Sibel's latest interview. Take a look)

Obama's State Secrets.

Obama was asked about State Secrets Privilege in his presser by Michael Scherer of Time. Here is the exchange:


Transcript:

Question: Thank you, Mr. President. During the campaign, you criticized President Bush's use of the state secrets privilege, but U.S. attorneys have continued to argue the Bush position in three cases in court. How exactly does your view of state secrets differ from President Bush's? And do you believe presidents should be able to derail entire lawsuits about warrantless wiretapping or rendition if classified information is involved?

Obama: I actually think that the state secret doctrine should be modified. I think right now it's overbroad.

But keep in mind what happens, is we come in to office. We're in for a week, and suddenly we've got a court filing that's coming up. And so we don't have the time to effectively think through, what exactly should an overarching reform of that doctrine take? We've got to respond to the immediate case in front of us.

There -- I think it is appropriate to say that there are going to be cases in which national security interests are genuinely at stake and that you can't litigate without revealing covert activities or classified information that would genuinely compromise our safety.

But searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court, you know, there should be some additional tools so that it's not such a blunt instrument.

And we're interested in pursuing that. I know that Eric Holder and Greg Craig, my White House counsel, and others are working on that as we speak.

That comment should get some traction tomorrow. It appears as though Obama has changed his mind on this issue, and if he wants to use the excuse that he simply inherited the problem, I don't care much even if it is not true, as Wired's Threat Level notes:

Obama’s explanation has a nice ring to it, but ultimately falls flat.

Describing the Justice Department as essentially on auto-pilot when pushing for the blanket dismissal of warrantless wiretapping and extraordinary rendition cases would be reasonable enough if this were Obama’s 14th day in office, instead of his 100th. When the administration first argued Bush’s state secrets position just two days after Obama was sworn in, really, only Threat Level complained.

But since then the Justice Department has unrelentingly continued to push the privilege, including making an argument before the 9th U.S. Circuit Court of Appeals, which rejected the administration’s position on Tuesday.

Brain Beutler makes the same point at TPM:

But it's hard to square (Obama's excuse) with what the administration's actually done. DOJ lawyers haven't asked the courts for more time, or to withhold key pieces of information. Rather, they've argued that these cases--Jewel v NSA, Al-Haramain Islamic Foundation v Obama, and Mohammed v Jeppesen Dataplan--be tossed out entirely. And they've done that by invoking the state secrets privilege. In fact, in Jewel, the administration went so far as to claim "sovereign immunity" for the government from just about any lawsuit involving wiretapping. That position is even more radical than Bush's was.

It's hard to imagine Obama walking that claim back. But as far as state secrets go, now he's on the record.

There was also an NYT editorial yesterday re the Jeppesen ruling, The State-Secrets Privilege, Tamed:

Of the many ways that the Bush administration sought to evade accountability for its violations of the law and the Constitution under the cover of battling terrorism, one of the most appalling was its attempt to use inflated claims of state secrecy to slam shut the doors of the nation’s courthouses.

Sadly, the Obama administration also embraced this tactic, even though President Obama criticized the cult of secrecy while running for office, leaving it to the courts to stand up for transparency and accountability.

It appears that Obama didn't like stuff like this, not surprisingly. It is good to see that Obama is apparently willing to change his mind. Of course, we still need to see the results of the Craig/Holder review, and whether they will review previous cases as well. It's also somewhat interesting that Obama mentioned the DoJ review, but didn't mention the State Secrets Protection Act.

There was some great news today in the Jeppesen / State Secrets case brought by the ACLU. Glenn Greenwald has some of the major highlights, including a great interview with ACLU's lead counsel, Ben Wizner.

The appellate court ruling is here (pdf).

I'm not a lawyer, so I won't go into the details for fear of saying something silly - but as Wizner says, you should read the ruling, because it is (mostly) readable by non-lawyers, and it makes some very commonsense arguments.

Wizner also warns that this is only the beginning on this case, in that it simply means that the State Secrets Privilege (SSP) can't be used to nuke a case at the beginning, and that the government must actually defend and justify every claim of secrecy as it pertains to each and every piece of evidence.

Although I didn't hear anything about it today re Jeppesen, the Obama administration's next legal argument will undoubtedly center around the Mosaic Theory that has previously been used in Sibel's case:

It requires little reflection to understand that the business of foreign intelligence gathering in this age of computer technology is more akin to the construction of a mosaic than it is to the management of a cloak and dagger affair. Thousands of bits and pieces of seemingly innocuous information can be analyzed and fitted into place to reveal with startling clarity how the unseen whole must operate.

For today, however, let's celebrate the ACLU's win and congratulate Ben Wizner.

Wizner, of course, also worked on Sibel's case with Ann Beeson. In Kill The Messenger, he says:

What you have here is the Attorney General of the U.S saying: " The plaintiff can’t even set foot inside a court because the entire case is a state secret. "

The danger is that if the government succeeds in that really overbroad invocation of the ‘State Secret Privilege in this case, it will be a very easy tactic for the government in future cases to avoid accountability and to avoid responsibility.

In early April, Attorney General Eric Holder was interviewed by Katie Couric. The Washington Independent reported:

"During last night’s interview, Couric asked Holder whether he thought the state secrets doctrine had been abused by the Bush administration.

“Well, I don’t know,” said Holder. “On the basis of the two, three cases we’ve had to review so far, I think that the invocation of the doctrine was correct. We - reversed - are in the process of looking at one case. But I think we’re very likely to reverse it.”

Presumably, the three cases he’s referring to are the Jewel, Al-Haramain and Jeppesen Dataplan. But Holder went on to say that there have been more than 20 such assertions in cases that are still open. He added that a report on the Justice Department’s use of the privilege is being prepared, and his “hope is to be able to share the results of that report with the American people.”"

I can't wait to see the 'results of that report.' Even though Sibel's case is not 'open' in any sense that I'm aware of, it would be difficult to imagine any review that does not consider the case, so I'll try to remain optimistic in the interim.

I'm certainly not on the side of those who argue that Obama is playing 11-dimensional chess, but if Holder does reverse one of the SSP claims of the Bush administration, when combined with today's Jeppesen ruling (against Obama), then perhaps there is some cause for optimism.

The Jeppesen ruling appears to completely undermine any reliance on Totten that the executive branch might use in Sibel's case, forcing them to rely entirely, and appropriately, on Reynolds.

Even then, the appellate court smacked down the Reynold's basis in today's ruling:

Even in Reynolds, avoidance of embarrassment—not preservation of state secrets—appears to have motivated the Executive’s invocation of the privilege. There the Court credited the government’s assertion that “this accident occurred to a military plane which had gone aloft to test secret electronic equipment,” and that “there was a reasonable danger that the accident investigation report would contain references to the secret electronic equipment which was the primary concern of the mission.”

In 1996, however, the “secret” accident report involved in that case was declassified. A review of the report revealed, not “details of any secret project the plane was involved in,” but “[i]nstead, . . . a horror story of incompetence, bungling, and tragic error.”

This reflects the same language that Senators Leahy and Grassley used when discussing Sibel's case:

"...We fear that the designation of information as classified in some cases [brought forth by Sibel Edmonds] serves to protect the executive branch against embarrassing revelations and full accountability... Releasing declassified versions of these reports, or at least portions or summaries, would serve the public’s interest, increase transparency, promote effectiveness and efficiency at the FBI, and facilitate Congressional oversight."

Senators Leahy and Grassley were aware of (at least some of) the real facts about Sibel's case when they wrote this - prior to then-Attorney General John Ashcroft's illegal retroactive classification of that information.

The Jeppesen case has other parallels with Sibel's case. In the Jeppesen ruling today, the courts differentiated between 'facts' and 'evidence' - noting that, for example, even though the Fifth amendment offers the protection of self-incrimination, that doesn't preclude other evidence being presented which point to the same facts. Similarly, the ACLU argued that the whole world knows that the plaintiffs were transferred by Jeppesen to various locations where they would be tortured - whether or not the American courts wanted to acknowledge it (courts in other countries have accepted that.) Sibel has been in a similarly weird situation, as she has said:

Swanson: So I should ask, I guess, before I start, are you under any gag order? Are there things that you can and cannot talk about?

Edmonds: Well - that's a very interesting question, David, because when the government invoked the State Secrets Privilege, it was specifically for the court procedures, so there won't be any court hearings, and as far as the courts are concerned, my case is gagged and classified.
[...]
But I've never had a gag order placed on me as far as the public statements, or any other investigative procedures are concerned, but as you know they have declared everything in my case, including my languages, and what I did for the FBI, classified. Now the question is whether this classification that they're using is even legal, or justified. As you know the executive branch has complete control over the classification.

That is, to a large extent, the gag on Sibel is to keep her case outside of the courts, outside of an offical judication, outside of the discovery process that would prove her case. This is also why they were so determined to fight her FOIA cases so strenuously.

As Sibel explained:

They were not only doing it with (Turkey) - because that operation was the sister operation of another investigation that dealt with Israel, but the FBI was not (transfering) these from counter-intelligence to investigation units, and they were supposed to do that. They were supposed to transfer and let the counter-espionage unit in the FBI, and the criminal division handle it. But they were not (transferring these cases).

So this was another case that I reported internally - and I never got anywhere with it as far as the FBI was concerned - and later, of course, when Ashcroft came out and invoked the State Secrets Privilege, Ashcroft himself inadvertently explained it! There is a sentence there saying "The State Secrets Privilege is being invoked in order to protect certain sensitive diplomatic relations and business relations of the US" - this is an exact quote from Ashcroft, explaining why the State Secrets Privilege was invoked.

Today's Jeppesen ruling undermines Ashcroft's argument here. The Jeppesen ruling essentially reinforces the principles behind Reynolds. Jeppsesen's 'business relations' in the torture regime are not given a blanket exemption from exposure in today's ruling, and, similarly, nor should the 'business relations' in Sibel's case be given a free reign.

Sibel has always argued that: 1) none of the disclosures that she wants to make would breach any national security concerns, specifically that her disclosures wouldn't reveal any 'sources and methods,' and that 2) it is illegal to use classification to hide illegal activity.

Today's Jeppesen ruling gives us hope, despite the Obama regime, that maybe the courts are at least open to applying the law.

Maybe that is all we can ask for at this point.