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Court closes oral arguments in FBI whistleblower case

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    News Media Update         WASHINGTON, D.C.         Secret Courts         April 21, 2005    

Court closes oral arguments in FBI whistleblower case

  • Lawyers for Sibel Edmonds say the first half of today’s proceeding could have been open because it did not raise national security issues.

April 21, 2005 — A federal appeals court panel ordered the public out of a Washington, D.C., courtroom this morning before it heard arguments in an FBI whistleblower case in which the U.S. government has claimed the “state secrets” privilege.

The U.S. Court of Appeals for the D.C. Circuit informed the parties Wednesday that oral arguments would be closed to everyone except FBI whistleblower Sibel Edmonds and the lawyers involved in the case. The order surprised those who follow the case, given that the appellate briefs were not filed under seal and apparently neither side had asked for the arguments to be closed. The American Civil Liberties Union, which is representing Edmonds with attorney Mark Zaid, challenged the closure in papers filed late yesterday afternoon.

At the same time, a coalition of 13 media outlets, led by The Washington Post and including The Reporters Committee for Freedom of the Press, quickly filed a motion to open the oral arguments to the public. Public-interest groups Public Citizen and the Project on Government Oversight, which had previously written a friend-of-the court brief siding with Edmonds, filed a similar motion.

“Even assuming there were some compelling government interest that necessitates sealing a portion of the oral argument, sealing the argument in its entirety is not narrowly tailored to serve that interest, as the First Amendment requires,” the media coalition stated in its brief.

In a one-page written decision issued early today, the court granted the media’s motion to intervene but refused to open the arguments or hold a hearing on the matter. It gave no explanation for its decision.

Edmonds, a former FBI translator who was fired after alleging misconduct at the FBI linguistics office, sued the government in federal court. Her suit was dismissed after the Justice Department successfully invoked the “state secrets” privilege, claiming everything about the case implicated national security.

The appellate panel, comprised of Chief Judge Douglas Ginsburg, Judge David Sentelle and Judge Karen LeCraft Henderson, heard two cases publicly today before adjourning for a brief recess shortly before noon.

“Can everyone please leave that is not involved in the third [Edmonds] case,” a court clerk ordered once the judges had left the bench. “We are clearing the courtroom.”

Edmonds’ attorneys, who said they were not subjected to a gag order, later described the closed-door proceeding. Ann Beeson, the associate legal director of the ACLU’s national office, spoke to the court first, presenting her argument for a few minutes. Ginsburg asked a few questions concerning whether the lower court should have considered procedures — short of dismissing the entire case — that would have accommodated the national security interests. He also questioned Beeson and Zaid about security clearances of Edmonds’ legal team.

Government lawyers then briefly discussed the case and pointed out that none of Edmonds’ attorneys had been cleared to handle national security secrets in the case. At that point, approximately 15 minutes into the arguments, the court asked Edmonds and her legal team to leave. Beeson asked the court if it would publicly release a transcript of that part of the hearing, and Ginsburg indicated it would. The government attorneys answered questions from the panel for another five or 10 minutes behind closed doors.

No confidential matters or national security secrets were discussed during the first part of the hearing, Edmonds’ attorneys said.

“From what we witnessed for the time we were allowed, there was nothing [confidential discussed] — you could have been there,” Edmonds told reporters after the hearing. “They didn’t even want to ask questions. They said, ‘You’re fine, just get out, we want to talk to the Department of Justice attorneys.'”

(Edmonds v. United States Department of Justice, Media Counsel: Kevin T. Baine, Adam L. Perlman, Kevin Hardy, Williams & Connolly, Washington, D.C.)KK

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