WASHINGTON – The American Civil Liberties Union and the ACLU of the National Capital Area filed an emergency motion Wednesday to open the D.C. Circuit Court of Appeals to the public during oral arguments tomorrow in a hearing over the termination of FBI whistleblower Sibel Edmonds. Several media outlets filed a separate emergency motion.
The move comes in response to an announcement from the court clerk this morning that the argument would be closed to everyone except attorneys involved in the case and Edmonds. Ann Beeson, associate legal director of the ACLU National Office, will argue on behalf of Edmonds tomorrow.
“There is no plausible reason why members of the public and the press cannot be present at this hearing, especially since the written arguments of the parties are entirely on the public record,”said Art Spitzer, legal director of the ACLU of the National Capital Area. “The rule of law does not evaporate because an appeal involves national security information.”
In its motion, the ACLU noted that appellate arguments are historically open to the public as a matter of law, and that federal circuits have rejected efforts to close them, even in cases involving national security. When the United States asked the Supreme Court to close part of the oral argument in the Pentagon Papers case a case that involved classified information of the greatest sensitivity that motion was denied. Likewise, in an appeal in the ongoing prosecution of Zacarias Moussaoui, an alleged conspirator in the 9/11 terrorist plot, the court rejected the government’s move to close the entire hearing.
The ACLU said that the court’s decision does not appear to be based on state secrets because individuals allowed in the courtroom, including Edmonds’ lead attorney, do not have security clearance in this case to be present during discussions involving classified information. The ACLU also said that, in this case, the government has not even moved for a closed oral argument.
The Washington Post, The New York Times, Daily News, CNN, Reuters America, Bloomberg News, Associated Press, Los Angeles Times, and several other media organizations also filed an emergency motion appealing the court’s decision. They noted that “the public has a strong interest in observing this oral argument, as it involves numerous issues of high public importance.”
Edmonds, a Middle Eastern language specialist who was hired by the FBI shortly after 9/11, was fired in 2002 after repeatedly reporting serious security breaches and misconduct. Edmonds challenged her retaliatory dismissal by filing a lawsuit in federal court, but her case was dismissed last July after then-Attorney General John Ashcroft invoked the so-called “state secrets privilege” and retroactively classified briefings to Congress related to her case.
The government has argued that every aspect of Edmonds’ case involves state secrets including where she was born and what languages she speaks. Edmonds is appealing to the United States Court of Appeals for the D.C. Circuit to reinstate her case. Several 9/11 family member advocacy groups filed a friend-of-the-court brief in support of her appeal.