Interview recorded March 7, 2007. Click here to listen.
What is the State Secrets Privilege? And what is its legitimate purpose if it has one at all? I have on the line Sibel Edmonds, contract translator-turned-whistleblower who worked for the FBI. Her websites are JustACitizen.com and NSWBC.org that’s the National Security Whistleblowers Coalition and also James Bamford who was a producer for ABC World News Tonight with Peter Jennings, is the author of The Puzzle Palace, Body of Secrets, and a Pretext For War, as well as many great investigative reports in Rolling Stone and other magazines. I’d like to welcome you both to the show.
Bamford: Thank you.
Edmonds: Thank you Scott.
Horton: The first question is for you Sibel: What is the State Secrets Privilege?
Edmonds: The State Secrets Privilege is an executive privilege that is based on common law it was never turned into a law by Congress and it was a privilege that was meant to be used rarely. And that was the case up until a few years ago, before this administration came into power. What happens is, this is when the government comes forward when there is litigation in court and says the facts involved in this litigation would hurt certain State-related secrets. They may be military secrets, or intelligence related, and as I said, this privilege has been abused repeatedly in the past five or six years.
I am the first known case for this administration for the State Secrets Privilege. They invoked it in my case around October, 2002, and since then they have invoking it in various cases the secret detention of El-Masri, and what they did in the case of Maher Arar and of course, Jim can talk about the invocation of the State Secrets Privilege in the NSA case that took place last year. Jim can you give a more detailed description of the State Secrets Privilege and how it’s being applied as far as these litigations are concerned?
Horton: And I’d like to add to that question Jim, what’s the difference between this and something just being classified? Why can’t they just say “Well Judge, that’s classified”?
Bamford: Well, they can say that something is just classified, but that would just apply to one item in a trial. What the administration has been trying to do is use the State Secrets Privilege as a sort of battering ram at the very front-end of a case, so when they as for a judge to issue a State Secrets Privilege order, it basically eliminates any further delving into the case.
And that’s been the problem. That was the problem with Sibel’s case was the fact that she couldn’t even get a hearing in court. For example when her case went to the appeals court, they excluded the press from the court, and they excluded even Sibel and her attorneys from the court even though they were supposedly hearing their case they wouldn’t let her defense attorneys hear what the prosecution was going to say so it’s a bizarre use of this privilege, not just to take a piece of information out of a trial, but to kill a trial entirely.
Bamford: And the way it was used in the case that I was involved in which is the NSA case was, again, the government came in and tried to have the entire case thrown out because of the State Secrets Privilege, indicating that there were a lot of secrets that would have come out if the case went forward, but the judge decided to hear the case anyway so we were able to argue our case in the lower court, and also in the appeals court.
So the privilege was being used very excessively during Sibel’s case and a few judges have begun to see that this is an abuse by the Justice Department and overruled the Justice Department on using it.
Horton: Okay now, for some historical perspective: What might be a legitimate use of the State Secrets Privilege in the past?
Bamford: Well, one legitimate use might be there was a spy case a number of years ago where somebody was arrested for espionage and the case was going forward and they could have used the State Secrets Privilege just to remove the one piece of evidence that would have revealed some secrets of the government how they were conducting some type of secret operation or something. Take the one piece of evidence out of the case, but leave the other evidence in, and let the case go forward. So that’s been done in the past, where they have used it selectively, just to take a piece of the information out, but what the Bush administration has begun doing is using it to take the entire case out, which deprives the defendant of any right to a trial.
Horton: Now, Sibel, is it not the case that the secrets that you know would compromise national security if you were to tell us?
Edmonds: Well, no!
Actually, this is exactly what my attorneys at the ACLU argue. For example, we had this public report by the Justice Department’s own Inspector General’s office they issued an unclassified version of that report which basically vindicated my case and they wanted to introduce this report into evidence and the government said “No, that is covered by the State Secrets Privilege.” Here is a report, a document that is readily available on the website of the Justice Department, but the Justice Department says “We consider it State Secrets Privilege, and classified.”
Now, they did the same thing with my languages the languages I speak, they called the nature of those languages as a State Secrets Privilege. They even went further, they said that where I went to school, and the topics of my university studies, they were all covered by the State Secrets Privilege. In fact, where I was born, and the countries I was raised in, they were all considered State Secrets Privilege, which is just absolutely bizarre!
And what is even more troubling is the fact that three judges in the appellate court agreed with it. Here is a government coming in this Kafkaesque situation, and claiming that my languages, my place of birth and even my date of birth, they were all covered by the State Secrets Privilege. And you have three judges sitting on the bench, saying “Okay we agree with the government. The entire case, and this information, is considered State Secrets Privilege.”
Horton: Well, there’s one branch of government left, if one branch is putting State Secrets Privilege on you, and another is upholding it, then all that’s left is the U.S. Congress, and I see that you guys have a petition that has come out today, which has signatories from more than 30 organizations it’s quite a list the ACLU, Citizen Outreach, Office of Management & Budget Watch, EPIC (the Electronic Privacy Information Center), Government Accountability Project, Electronic Freedom Foundation, the National Coalition Against the Censorship, Downsize DC (glad to see them on there), September 11th Advocates, Citizen Outreach… and this petition is demanding hearings in the U.S. House of Representatives, is that right?
Edmonds: Correct. And it is very good to see that you have these various groups, some of them are active within the Civil Liberties community, others are considered whistleblower organizations, there are organizations that deal with privacy issues, and all of these organizations have come together and they are considering this case as a very important case that needs to have public hearings because as I said, it’s very troubling.
Here you have an Inspector General’s report out there that came out a year and a half ago, and you already have Congressional offices that issued reports four and five years ago and statements confirming the case, saying that it involves criminal activities by certain people within the government, and the fact that this case needs to become public because the public has the right to know, and therefore they are demanding that Congress and again I’m going to emphasize this word, they are demanding to have a public hearing on this. Not a closed hearing. Because I have testified before various committees, before various offices, inside the SCIFs, behind closed doors, and these places are like black holes, you go into these black holes and the information remains there.
So what we want right now is we want to have open, public hearings where we can put witnesses on the stand under oath. There are several veteran agents who are willing, who want to come forward and testify, because I was not the only person who reported these issues. These other agents reported these cases to the Justice Department, Inspector General’s office, with the FBI’s Office of Professional Responsibility, and most of these agents also have gone to the various offices in the Congress. They have gone to Senator Grassley, and Senator Leahy, for the Judiciary Committee, and some of these people have come forward and provided information to Congressman Waxman’s office. So we want to have these witnesses stand there and tell the American public, tell the Representatives what really has been happening within these agencies, and the criminal activities that have been taking place there.
Horton: Now it’s my understanding that the Senate really has a lot more investigative power than the House when it comes to things like this. Why are you not going straight to the Senators who have already publicly said that you are telling the truth, who are now in control of the Senate?
Edmonds: In fact, the petition was delivered today by these organizations to both the Senate, the Senate Judiciary Committee, and the House, and this is the House Government Reform Committee, under Chairman Henry Waxman. What is interesting is that we have had far more support from the House than the Senate. I don’t know if you remember, Scott, but four years ago, Senator Grassley came out, and this was during the CBS “60 Minutes” segment, and he was outraged about this case. He said “She’s credible. Ms Edmonds is credible because even the people within the FBI have come forward and corroborated her case, her allegations, her reports, and we need to turn the FBI upside down” yet, suddenly, they went silent.
As you know, in May 2004, then-Attorney General Ashcroft came out and invoked the retroactive classification, and basically put the Senate under this gag order which was issued illegally because you can’t retroactively classify documents and statements that have been public for two years. And instead of fighting it, the Senate basically went out and took these documents off their websites, and since then they have been quiet. This is true for both the Democrats, that is Senator Leahy’s office, and the Republicans, because one of the disadvantages [laughs] of my case, is that it is not a partisan case, because the case involves the time period between 1997 and 2002, and the issue somehow is not perceived, because it shouldn’t be perceived, it’s not a partisan issue and that actually lessens the amount of support you receive, because Congress tends to jump into cases where one party sees an advantage to bash another party. Fortunately, and unfortunately, this case doesn’t fall into that category.
Horton: Right. Now, in terms of trying to get hearings, I know that you’ve been as loud as you are allowed to be this whole time in trying to get an official, public investigation so that the American people can find out about this, but now is pretty good timing, it seems like. We have this new FBI agent coming forward, Gilbert Graham, who has made some allegations [.pdf] concerning the very wiretaps that you listened to, Sibel.
James, can you tell us a bit of the background of this guy, Gilbert Graham, who he is, and what’s important about what he’s now finally come out and said publicly?
Bamford: Well, I think he’s a very courageous whistleblower. He worked at the FBI in the counter-intelligence and counter-terrorism area and he worked on a very sensitive political investigation involving Turkey, corruption within the Bush administration and people that were dealing with Turkey, and money being passed and so forth. The FBI was investigating this, and he realized that the FBI was asking for warrants that were known as the Foreign Intelligence Surveillance warrants. These warrants, known as FISA warrants are very easy to get, it doesn’t require much in the way of evidentiary information to get them, and they were using those very easy-to-get FISA warrants in order to avoid having to show probable cause to get a regular warrant, a criminal-type warrant.
So he complained to the Inspector General’s office that this was illegal, and it is. That was the whole reason that they originally set up those two types of warrants, you have the easier warrants, the FISA warrant, in order to get intelligence information, but if you’re trying to look into a criminal case, you need a probable-cause warrant. And the FBI decided to try the easy warrant to avoid going the legal route so he complained about that and that was a part of the case that Sibel was involved in. What makes it very interesting is the fact that the government used the State Secrets Privilege to try to hide what was going on, which was obviously illegality and used it against Sibel so she couldn’t bring any of that illegality out in her case.
Horton: And we see why it’s so difficult then, to get this story out, all sides agree to go ahead and use this State Secrets Privilege on her because the FBI agents who have [found] criminality on the part of the people they were investigating, they were breaking the law in order to get that evidence.
Bamford: That’s right, that’s a criminal violation to try to bypass the legal requirement for getting a warrant, and instead getting a FISA warrant when you’re going after a criminal case. So, again, for an FBI agent who’s been there for over 20 years, to actually write a letter like that to the Inspector General’s office, that’s a very big decision, and a lot of times it’s a career ending decision so it requires an awful lot of courage, but it also requires somebody that knows really what’s going on and to feel that the American public should know that this is going on. So there’s really two elements here one is the illegality on the part of the FBI by going this route and getting the easier warrant when they should be getting the other one, and the second element is the illegality of the case they were looking into the fact that there were people involved in the Turkish government, there were people involved in Turkish lobbies, people involved in the Bush administration, high officials in the Bush administration who were getting payoffs, getting money, and that was what the corruption investigation was looking into.
Horton: Wow. So, Sibel, it sure sounds like you stepped into the perfect storm here. Did you have any idea that these wiretaps, these documents that you were translating, that these had come from illegal warrants?
Edmonds: At the time, no! In fact, I did not find out about it until a few months ago when our organization was contacted by several agents. Now we have the name of one of them, and that is Special Agent Gilbert Graham. He retired in 2002, and he filed his complaints with the FBI OPR and the Justice Department Inspector General’s office, he went to Senator Grassley’s office, he went to Senator Leahy’s office a few months before my case became public. It was a few months before Inspector General’s office started investigating my case but I was not aware of the fact at the time, and I found out about it a few months ago, and since then, two other witnesses, and again these are veterans, agents and specialists, who have come forward, providing us with information. They are willing to testify before Congress, but they don’t want to become public, they are not after publicity in fact they’re trying to protect their privacy, but they are courageous enough, as Jim mentioned, to say “Look, I’m aware of this, I have documentation, we know other witnesses within the FBI.”
And here is another thing, the agents themselves, we’re talking about the street level agents, case agents, these are patriotic great guys. So it was not these agents going and violating these rules, but it was taking place within the FBI’s administrative headquarters and the higher-ups within the Justice Department. So, no, I did not know about this until a few months ago, and it was a revelation for me, because I was like “Oh, here is one other reason that everybody wanted to cover up this case by invoking the State Secrets Privilege.”
Everybody was happy in the end because on one hand you have corrupt congressional representatives several of them, and they know who they are and they know about this case. Then, you have people in the State Department you have at least one individual within the State Department you have two or three individuals within the Pentagon and you also have certain well-known lobbyists. So this was a case where the Justice Department didn’t want their own illegal actions, in terms of conducting these wiretap operations, to be known so they had their own reason of quashing this thing and basically wanting to cover it up via the State Secrets Privilege.
You had the State Department wanting to have it covered up, you had the Pentagon, and then also you had the Congress not having the reason, the motivation which should be representing the American people and fulfilling their obligations to the American people not wanting to touch the case because it’s a controversial case.
Another troubling aspect of this new case is the fact that we don’t know what they did with this information that they obtained illegally. Obviously they did not transfer it to the criminal division to be investigated so what did they do with this information? Based on what we are getting from our sources, and these are people who have recently left the Bureau, it would not be illogical to actually consider the fact that the Bureau and the Justice Department may be using this information to actually blackmail people within Congress.
Horton: That makes perfect sense, and it reminds of that great article by David Rose in Vanity Fair about your case where he talked to different officials at the FBI and the Congressional committees that you spoke to in secret session who implicated [former House Speaker] Dennis Hastert receiving suitcases full of cash, bribes, drug money and God-knows-what.
Edmonds: Correct. And David Rose’s article mentions repeatedly that the information that he obtained came from various people within the Congress who actually were able to see certain documents and hear my testimony inside the SCIF, and also from current and former FBI and Justice Department officials and the fact that he confirmed the case and got the information from those various channels.
Horton: And you’ve told me before that this case goes back to 1996-97, some of these documents you were transcribing, is that right?
Edmonds: This particular operation was an ongoing operation that started towards the end of 1996, and it was officially shut down by the Justice Department in February 2002 so you’re looking at a six year period.
Horton: Alright, James Bamford, when I look into this case, I keep finding the names Douglas Feith, Richard Perle, Marc Grossman, and, well, various people close to AIPAC, and what Col. Larry Wilkerson Colin Powell’s former aide calls “the Cheney cabal.” But in a lot of cases, it seems this story is a lot bigger than just the Cheney cabal. We’re talking about widespread corruption from both parties, all different agencies. Your comment?
Bamford: Well, that’s exactly right, we’re just seeing one tip of the iceberg yesterday with the conviction of Libby and that was one of the rare instances where somebody was actually brought to trial. What we don’t see is all the stuff that went on behind the scenes where nobody has been arrested, and nobody has been brought to trial, and that’s what the State Secrets Privilege was put in to hide and a lot of that involved money being passed, and a lot of this has been going on for years, and was being used tremendously by the Republicans who have been very big on supplying money to Turkey and very big on supplying money to people that represent Turkey.
So that’s the thing that really needs to be looked into where is this money going, where is it coming from, who is getting it, how much involvement was there with the former Speaker of the House how much did Denny Hastert have to do with this? Those are the issues that really could be brought out if they do have a congressional hearing. The court is pretty much out of the picture at this point since Sibel’s case has gone all the way to the Supreme Court and it’s been turned down. So the next avenue to pursue it is by having a congressional hearing, and now that the Democrats are in power, there’s a possibility of having the entire case brought out during a congressional hearing which is something that couldn’t have happened during the time when the Republicans were in control of Congress so that is the next stage, and I hope that’s what is going to happen after Sibel’s petition has just come out.
Bamford: Sure, that’s the amazing thing. We only have one, and that’s the one that looked into Scooter Libby and there should be many others. In the case that I’m involved in, the NSA case, the judge came out last August and found in favor of the ACLU, which is bringing the case against the NSA, and the judge ruled basically that President Bush was in violation of both the Foreign Intelligence Surveillance Act which is a criminal statue that carries five years in prison as a penalty which makes it a felony, and also in violation of the Constitution.
When we look back, we had a break-in at the Democratic National Headquarters and that caused a special prosecutor to be called in during the Watergate period that led to the impeachment vote against Richard Nixon, and then during Bill Clinton’s time, the Republicans came up and thought that the fact that he may have lied on a sealed affidavit regarding a consensual sexual affair was enough for an impeachment, and enough for Ken Starr as special prosecutor, so here we have a president who has bee accused by a federal judge of violating a felony, punishable by 5 years in prison, and yet there’s not been a single call for a special prosecutor or a grand jury to look into it so it’s really incredible, isn’t it? Also in the case regarding Sibel where there are obvious indications of illegality, and the passing of money between government officials and lobbyists, and again there’s been no call for any kind of special investigator.
Horton: Alright, well in the last few minutes here Sibel, why don’t you go ahead and explain your group, the National Security Whistleblowers Coalition, and call for support, whatever you want.
Edmonds: Okay, well, this petition is going to be posted on all these organizations that have signed on, and you named a few of those organizations, and we have posted it on our website, NSWBC.org that stands for National Security Whistleblowers Coalition and in addition, in a few days, we are going to launch this public action campaign, and there will be a website where your listeners, and our supporters, the American public, can go and send this petition Congressman Waxman, Chairman Waxman’s office, and urge him to set a date for this hearing and make sure that the hearing is a public hearing, and it’s about the case, and to have these witnesses to stand there under oath and testify.
One other thing I would like to mention, and that’s what you asked Jim about the fact that this went back to 1996, 97 you need to realize that these people were not really out of the picture, because during those years, both say, Richard Perle and Douglas Feith, they were registered foreign agents for the government of Turkey and they were actively lobbying on behalf of Turkey. And when I say Turkey, I’m not talking about Turkey the country. Certain elements, the interest groups within Turkey, so you’re looking at the same people.
Marc Grossman was the ambassador to Turkey, and then in 1997 he came and took a fairly high-level position in the State Department in 1997 so Grossman didn’t come to his office during this current administration, but he’s been there so you’re looking at the same cabal. The fact that their tentacles were within the government agencies, even during those years, and of course, it became that much deeper, and stronger, during this administration is very important to remember.
And so much has been public and this is why it’s important to emphasize the fact that they just can’t go willy-nilly and invoke the State Secrets Privilege and hope that the case will just go away. This needs to come out completely, and we need to see some accountability. And if Congress moves forward and holds this public hearing, I can guarantee you that you are going to be seeing some major criminal indictments here because we are not talking about light-level stuff we are talking about very serious criminal activities.
Horton: That’s right. And in fact anybody who wants to really delve into the background of Sibel Edmonds case, please go to Antiwar.com and check the archives for my interview last week of Luke Ryland who is the world’s best investigator on this case as far as I can tell.
Edmonds: Yes, he is.
Horton: We’re out of time here. Any final closing comments from either of you?
Bamford: I just want to supply my support to Sibel’s effort here. I think she’s been doing a fantastic job of trying to get this out there, and all the listeners out there, I hope they join in with their support.
Horton: I’d like to add too that the Constitution is far from perfect, but the House of Representatives is un-elected, or re-elected every two years and that means each of those individual congressmen has to do what their constituents say. If their constituents demand that something happens, they will tend to go along. They will never see the light, but sometimes they can feel the heat so it is not a pointless task to contact your congressman and pressure them to hold these hearings. This is important stuff.
And with that, I guess we’ll leave it.
Thank you very much for your time, both of you, today.
Edmonds: Thank you Scott, my pleasure.
Bamford: Yeah, thanks Scott.
Transcribed by Luke Ryland.