NEWS MEDIA UPDATE · U.S. SUPREME COURT · Secret Courts · Nov. 28, 2005
Supreme Court refuses to review FBI translator’s case
Nov. 28, 2005 · The U.S. Supreme Court today rejected a petition to review a federal appeals court’s dismissal of a whistleblower case on national security grounds, and whether the appellate court improperly closed oral arguments to the public when it reviewed that dismissal.
The Court’s decision lets stand an April 2005 order by the U.S. Court of Appeals in Washington, D.C., denying the media’s attempt to intervene in the case to gain access to oral arguments that the court had unilaterally ordered sealed without issuing any written findings. A media coalition led by The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief asking the Supreme Court to review the case and require courts to find that closure is permissible only when it protects a compelling government interest.
Under the appellate court’s reasoning, the coalition argued in its brief, “members of the public could be excluded from any broad category of cases that would facilitate public review of government conduct and would never understand when the government’s interest in protecting state secrets outweighs the public’s right to access.” The consequences of the court’s decision will be devastating for the public and press, the coalition warned. “Closing cases that involve allegations of government wrongdoing leads to increased public interest in what takes place behind closed doors, fosters public doubts about the private justice that certain people and entities get in the public courts, harms public debate about the issues involved in the litigation, and perhaps most devastatingly fosters an appearance of unfairness, that the government can close off access to the public courts when it is under fire.”
Edmonds’ attorneys argued to the Supreme Court both that the appellate court’s closure without findings violated the public’s first amendment rights and that the court wrongly affirmed the trial court’s dismissal of the case based on the state secrets privilege before considering any evidence.
Lawyers for Sibel Edmonds are deeply disappointed in the Court’s decision, and the disturbing trend it reflects among the courts. In Edmond’s case, explained Ann Beeson, ACLU attorney and Edmond’s counsel, “what’s so amazing is that the government agreed to argue in open court and it was the judge’s decision to close it. As sensitive cases go, this case had almost no risk. As Sibel’s lawyer I had no access to any classified information so there was no danger it would be disclosed — I didn’t know it.”
Courts are increasingly closing court proceedings, and the Supreme Court’s refusal to consider Edmond’s case will not improve matters for the press and public. “Unfortunately we’re now in a climate where it’s become routine for courts to put up with a level of secrecy that would’ve been unheard of five years ago,” Beeson noted. “We don’t have a survey about closed hearings, but in my experience as a lawyer it’s becoming far too common for judges to close proceedings without making any findings as to whether they should be open to the public.”
Sibel Edmonds, a former FBI translator, sued the government when she was fired after alleging misconduct at the FBI linguistics office. Her suit was dismissed after the Justice Department successfully invoked the “state secrets” privilege, claiming everything about the case implicated national security.
Her appeal to the U.S. Court of Appeals in Washington, D.C., which was handled by the ACLU, was closed to the public and press with little notice. The court rejected with no explanation the ACLU’s request and two independent motions to allow public access to the proceedings.
(Edmonds v. Department of Justice; Counsel for Petitioner: Ann Beeson, ACLU, New York City) — SB