Congressional Quarterlys national security editor notes that when employees of intelligence agencies turn to the courts for redress of their maltreatment as whistleblowers, they encounter the judicial version of a neutron bomb, the state secrets privilege.
For more than 50 years, its allowed the spy agencies to pre-empt troublesome suits by declaring a matter so sensitive that mere mention of any of its elements in court, no matter how oblique, would cause grave damage to U.S. national security. The judges usually go along, the record shows, sometimes without even examining the documents themselves. Big surprise: Sometimes the spy agencies dont tell the truth.
As Steven Aftergood of Secrecy News observes, "The state secrets privilege has been invoked with growing frequency to deflect claims of unlawful domestic surveillance, detention, and torture as well as other more mundane complaints, on grounds that adjudicating them would cause unacceptable damage to national security."
Meanwhile a journalist for Pajamas Media reports that the governments use of the privilege to gag FBI whistleblower Sibel Edmonds didnt stop the London Sunday Times from reporting on January 6 that
A whistleblower has made a series of extraordinary claims about how corrupt government officials allowed Pakistan and other states to steal nuclear weapons secrets.
Sibel Edmonds, a 37-year-old former Turkish language translator for the FBI, listened into hundreds of sensitive intercepted conversations while based at the agencys Washington field office.
She approached The Sunday Times last month after reading about an Al-Qaeda terrorist who had revealed his role in training some of the 9/11 hijackers while he was in Turkey.
Edmonds described how foreign intelligence agents had enlisted the support of US officials to acquire a network of moles in sensitive military and nuclear institutions.
Among the hours of covert tape recordings, she says she heard evidence that one well-known senior official in the US State Department was being paid by Turkish agents in Washington who were selling the information on to black market buyers, including Pakistan.
Why the mainstream U.S. medias silence on this accusation? The Pajamas Media reporter says:
A current employee of the Department of Homeland Security, who spoke to Pajamas Media on the condition of anonymity, had this to say: It is mind-boggling. Ive sent personal emails to my contacts at ABC, at CBS, at the New York Times, and the Washington Times. No one is even responding to my emails. They call me back about other things, but as far as Sibel [Edmonds] is concerned, anything touching on that subject gets overlooked, gets ignored.
Why? this reporter asked.
Reporters are terrified of the State Secrets Privilege and being subpoenaed to testify before a federal grand jury. No one wants to wind up like Judy Millerin jail.
The unnamed source here may have been referring to penalties for disclosing classified information rather than the state secrets privilege per se, but the U.S. media’s inattention to the Sunday Times‘ explosive contention is in any event curious.
But Congress now appears poised to codify the privilege and in doing so, limit its use. Last month Senator Ted Kenneday (D-MA), along with Senators Patrick Leahy (D-VT) and Arlen Specter (R-PA) has introduced S.2533, a bill to enact a safe, fair and responsible state secrets privilege act. The measure will get its first hearing February 13 in the Senate Judiciary Committee, co-chaired by Leahy and Specter. A full description of the need for the bill and how it would operate is found here.