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Stuffing the Cat Back in the Bag

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  1. Freedom of Information
From the Summer 2004 issue of The News Media & The Law, page 17.

From the Summer 2004 issue of The News Media & The Law, page 17.

Former FBI contract translator Sibel Edmonds, who was fired in April 2002 for “disruption,” told her story to congressmen in June 2002. She also told her story to a nationwide audience on the CBS show “60 Minutes” in October 2002. But Edmonds cannot tell her story in court because it is now classified and because a judge has ruled that part of what she has to say constitutes “state secrets.”

The cat has long been out of the bag. But in the face of new gag orders, that cat can’t help Edmonds’ reputation or help others who believe lapsed responsibility in FBI translations contributed to intelligence failures before Sept. 11, 2001.

In May, the Justice Department retroactively classified information it had given congressional staff in 2002 that had long been public. The information was in response to inquiries from Sens. Patrick Leahy (D-Vt.) and Charles Grassley (R-Iowa) about Edmonds’ allegations against the FBI. But congressional staffers have since been told by Attorney General John Ashcroft not to discuss it and to turn in their notes from the earlier discussions.

According to the amended Executive Order on classification, records can only be classified to protect national security or foreign policy. It is hard to imagine that further disclosure of Edmonds’ already-public information could be so ominous. It is less difficult to see how convenient it is for the government not to deal with Edmonds’ claims.

The retroactive classification bars some of Edmonds’ testimony in lawsuits brought by the families of 9/11 victims. A court has ruled that Edmonds’ testimony would reveal “state secrets.” (Burnett v. Al Baraka Investment & Development)

The allegations became “state secrets” at the urging of the Justice Department in another lawsuit, a Privacy Act case brought by Edmonds herself. She objected when the department insinuated publicly that dissatisfactory work might have contributed to her firing. A federal district court deferred to the government’s claims. She has appealed, but for the moment she cannot divulge “state secret” information in court, either in her own case or in the other cases. (Edmonds v. Department of Justice)

In July, the Justice Department’s inspector general ended an investigation, undertaken at the behest of Leahy and Grassley, into Edmonds’ firing. The IG did not conclude that she was let go solely in retaliation for making her allegations, but found it was “at least a contributing factor.” That report is classified.

In a letter to Senate Judiciary Committee Chairman Orrin Hatch (R-Utah), FBI Director Robert Mueller vowed to review agency handling of Edmonds’ complaints against a colleague and to investigate a need for discipline in FBI ranks highlighted by her complaints. As a contract employee, Edmonds was not entitled to the protection of whistleblower laws, Mueller wrote, but said he had directed FBI employees to extend the protection to contractors and detailees. He said the agency “will not tolerate reprisals or intimidation by any bureau employee against those who make protected disclosures.”

The 32-year-old Turkish-American translator, fluent not only in Turkish but in other Middle Eastern languages, began work with the FBI’s language division shortly after Sept. 11, 2001, with a top-secret security clearance. She had not been there long when she reported up the line that there were serious failings within her unit.

In an October 2002 “60 Minutes” segment titled “Lost in Translation,” Edmonds told reporter Ed Bradley that agents in New York, Los Angeles and other field offices worked around the clock after Sept. 11, and asked for priority in translating records they sent her. But her supervisor, she said, told her to slow down and let the cases pile up. That way, the unit could seek a bigger budget and more translators. She refused to comply.

“I would come to work, turn on my computer and the work would be gone. The translation would be gone,” she told Bradley. “Then I had to start all over again and retranslate the same document. And I went to my supervisor and he said, ‘Consider it a lesson and don’t talk about it to anybody else and don’t mention it.’ ”

Edmonds talked to Bradley about other concerns, too. For instance, a fellow Turkish translator with ties to a Turkish organization the FBI was actually investigating left out critical segments of a wiretap, marking them “unimportant.” That employee, who has since moved to Belgium, grew angry when Edmonds rebuffed invitations to join that organization, Edmonds said. Telling superiors did not help. They found mistakes, but chalked them up to that translator’s inexperience, not to guile, she said.

The FBI apparently did little to investigate her complaints. Instead, it fired her. Deeply troubled that the agency had failed to address her concerns, she contacted Leahy and Grassley. They wrote to the agency’s inspector general and Ashcroft seeking a quick investigation before witnesses moved or records were lost.

Those letters are no longer on the senators’ Web sites because of the Justice Department direction that information is now classified. (The letters still appear on the Web site www.thememoryhole.org.)

In late June, the Washington, D.C.-based Project on Government Oversight (POGO) sued Ashcroft and the Department of Justice for unlawfully reclassifying information and failing to comply with the amended Executive Order. Barring the release of the long-public information is an unconstitutional prior restraint that violates the First Amendment, POGO wrote in its complaint before the federal district court in Washington, D.C.

President Bush amended the Executive Order on classification in March 2003 to allow reclassification of records, but only under the personal authority of the agency head, where the information may be reasonably recovered and where the reclassification is reported promptly to the director of the Information Security Oversight Office.

The widely disseminated information is not reasonably recoverable, POGO said, and the ISOO director was not promptly notified of the action.

The reclassification occurred to gain an advantage in litigation, POGO said.

And it stifles public discussion on the adequacy of the FBI’s translation unit and Edmonds’ reports that there are problems there. (POGO v. Ashcroft)

Freedom of Information requesters should watch these cases. As the government shuts down access to information, reporters must depend more heavily on agency insiders, or whistleblowers, to tip them off about what the government is doing.

Rebecca Daugherty is the FOI director of the Reporters Committee.