Wednesday, April 29, 2009

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.

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