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EDMONDS v. U.S. DEPARTMENT OF JUSTICE

July 6, 2004.

SIBEL EDMONDS, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.



The opinion of the court was delivered by: REGGIE B. WALTON, District Judge

MEMORANDUM OPINION

Following the terrorist attacks against our nation on September 11, 2001, the plaintiff was hired by the Federal Bureau of Investigation ("FBI") "as a contract linguist to perform translation services[.]" Complaint ("Compl.") ¶ 10. During the course of her employment with the FBI, the plaintiff asserts that she "reported a number of whistleblower allegations to FBI management officials concerning serious breaches in the FBI security program and a break-down in the quality of translations as a result of willful misconduct and gross incompetence." Id. ¶ 15. After the plaintiff's employment with the FBI was terminated, she filed the instant lawsuit alleging claims pursuant to the Privacy Act, 5 U.S.C. § 552a et seq. (2000), the Administrative Procedures Act ("APA"), 5 U.S.C. § 551-52, 701-06 (2000), and the First and Fifth Amendments to the United States Constitution.*fn1 Id. ¶ 1. This matter is currently before the Court on the defendants' motion to dismiss the plaintiff's complaint ("Defs.' Mot."), in which the Attorney General of the United States has "formally assert[ed] the state secrets privilege to protect certain classified, national security information that goes to the core of the plaintiff's allegations [from being] disclosed."*fn2 Defs.' Mot., Memorandum of Points and Authorities in Support of Defendants' Motion to Dismiss Complaint Based on the State Secrets Privilege ("Defs.' Mem.") at 1. Upon consideration of the parties' submissions, ex parte in camera reviews of classified declarations submitted by the Attorney General and the Deputy Director of the FBI, and for the reasons set forth below, the Court will grant the defendants' motion to dismiss this case.

I. Factual Background

  Although much of the information concerning the plaintiff's employment history with the FBI is classified and therefore will not be referenced in this opinion,*fn3 the plaintiff contends that between December 2001 and March 2002, while employed by the FBI, she reported a number of alleged acts of misconduct to the FBI.*fn4 Compl. ¶ 15. On February 7, 2002, the plaintiff states that she wrote a letter to the Acting Assistant Supervisory Agent in Charge ("ASAC") detailing her "concerns about security and management problems in the language department and requesting that prompt corrective action be taken." Id. ¶ 17. During the following week on February 13, 2002, the plaintiff states that she wrote a letter to an Executive Assistant Director for the FBI, "notifying him of [her] serious security concerns which potentially put Plaintiff's personal safety and the safety of her family at risk." Id. ¶ 20. The plaintiff then met with a Deputy Assistant Director for the FBI on March 7, 2002, to discuss her reports of misconduct. Id. ¶ 22. That same day, the plaintiff filed complaints with the FBI's Office of Professional Responsibility ("OPR") and the Department of Justice's Office of Inspector General ("OIG") detailing her "allegations of serious security breaches and misconduct." Id. ¶ 23. The plaintiff's employment with the FBI was terminated on March 22, 2002, id. ¶ 24, and a letter was sent to the plaintiff on April 2, 2002, explaining that her contract was "terminated completely for the Government's convenience." Id. ¶ 25.

  Following the termination of her employment with the FBI, many of the events that now serve as the predicate to the plaintiff's claims in this lawsuit occurred. On May 8, 2002, the plaintiff states that her attorney sent a letter to both Attorney General John Ashcroft and FBI Director Robert S. Mueller indicating that "as a direct result of the FBI's failure to address or correct the serious misconduct and security breaches that were reported by Plaintiff[,] the safety and security of Plaintiff and her family has been jeopardized and that a foreign country has targeted Plaintiff's sister to be interrogated `and taken/arrested by force.'" Id. ¶ 26. On this same day, Senator Charles E. Grassley sent a letter to the Director of the FBI indicating that the plaintiff "has come forward with a number of disturbing allegations about misconduct, incompetence, potential security violations and retaliatory threats." Id. ¶ 27. Senator Grassley also asked the FBI Director to "emphasize to [FBI] officials . . . that retaliation against current or former FBI employees is not acceptable, especially when retaliation endangers a person's family member." Id. On June 8, 2002, the Associated Press ("AP") published an article that was purportedly "widely disseminated on its news wire, quoting `Government officials, who spoke only on condition of anonymity,' about Plaintiff." Id. ¶ 28. This AP article stated that the defendants were conducting an investigation of the plaintiff's "whistleblower `allegations of security lapses in the translator program that has played an important role interpreting interviews and intercepts of Osama bin Laden's network since Sept. 11.'" Id. ¶ 29. These officials who are alleged to have anonymously related this information to the AP also indicated that "the FBI has been unable to corroborate the whistle-blower's allegations[,]" id., that the plaintiff "subsequently was subjected to a security review herself," id. ¶ 30, and that "[t]he FBI has focused its investigation on whether either the accused or the whistle-blower compromised national security[.]" Id. ¶ 31. Then, on June 18, 2002, the Washington Post published an article, again "citing to Government officials who [stated that] the FBI fired Plaintiff because her disruptiveness hurt her on-the-job performance." Id. ¶ 32 (internal quotation marks omitted). The Washington Post article also reported that FBI officials stated that the plaintiff "had been found to have breached security." Id.

  The plaintiff commenced the instant lawsuit on July 22, 2002. The plaintiff's Privacy Act claim alleges that confidential information maintained in the defendants' systems of records was unlawfully released to unauthorized individuals including "information that Plaintiff was subject to a security review, [and information about the] Plaintiff's job performance and other information contained in the Defendants' personnel, security and investigative files. . . ." Id. ¶ 37. The plaintiff's First Amendment claim alleges that her complaints about misconduct constituted protected First Amendment conduct and that her termination amounted to retaliation by the FBI. Id. ¶¶ 51-52. Finally, the plaintiff's Fifth Amendment claim asserts that the termination of her employment and interference with her ability to obtain future employment by the defendants violated her rights to procedural due process and her due process liberty interest. Id. ¶ 63.

  II. Legal Analysis

  The state secrets privilege is a common law evidentiary rule that permits the United States to "block discovery in a lawsuit of any information that, if disclosed, would adversely affect national security." Ellsberg v. Mitchell, 709 F.2d 51, 56 (D.C. Cir. 1983). The District of Columbia Circuit has explained that "[t]he various harms, against which protection is sought by invocation of the privilege, include impairment of the nation's defense capabilities, disclosure of intelligence-gathering methods or capabilities, and disruption of diplomatic relations with foreign governments." Id. at 57 (footnotes omitted). A brief review of the history of the state secrets privilege is a necessary predicate to addressing the government's assertion of this privilege.

  The origins of the state secrets privilege can be traced back to the treason trial of Aaron Burr in United States v. Burr, 25 F. Cas. 30 (C.C.D. Va. 1807) (No. 14,692D). See In re United States, 872 F.2d 472, 474-75 (D.C. Cir. 1989); Ellsberg, 709 F.2d at 56 n. 21. In Burr, the defendant sought access to a letter from General Wilkinson, who was the primary witness for the government against the defendant, to President Thomas Jefferson that purportedly contained information "in relation to the transactions of Mr. Burr, `of whose guilt,' [General Wilkinson] says, `there can be no doubt.'" 25 F. Cas. at 32. The government objected to the production of this letter, asserting that it was
improper to call upon the president to produce the letter of Gen. Wilkinson, because it was a private letter, and probably contained confidential communications, which the president ought not and could not be compelled to disclose. It might contain state secrets, which could not be divulged without endangering the national safety.
Id. at 31. Chief Justice Marshall, writing for the Court, noted that "such circumstances present a delicate question" because this was a capital case in which the defendant claimed that the letter was material to his defense. Id. at 37. The Burr Court, however, did not have to resolve whether this letter should be disclosed because there was "nothing before the court which show[ed] that the letter in question contain[ed] any matter the disclosure of which would endanger the public safety." Id. Chief Justice Marshall stated that "[i]f it does contain any matter which it would be imprudent to disclose, which it is not the wish of the executive to disclose, such matter, if it be not immediately and essentially applicable to the point, will, of course, be suppressed." Id.
  In 1875, the Supreme Court had the occasion to address the state secrets privilege in the case of Totten v. United States, 92 U.S. 105 (1875). In Totten, a lawsuit was
brought to recover compensation for services alleged to have been rendered by . . . William A. Lloyd, under a contract with President Lincoln, made in July 1861, by which he was to proceed South and ascertain the number of troops stationed at different points in the insurrectionary States, procure plans of forts and fortifications, and gain such other information as might be beneficial to the government of the United States, and report the facts to the President; for which services he was to be paid $200 a month.
Id. at 105-06. The Supreme Court found the suit could not be maintained, concluding:
It may be stated as a general principle, that public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated. On this principle, suits cannot be maintained which would require a disclosure of the confidences of the confessional, or those between husband and wife, or of communications by a client to his counsel for professional advice, or of a patient to his physician for a similar purpose. Much greater reason exists for the application of the principle to cases of contract for secret services with the government, as the existence of a contract of that kind is itself a fact not to be disclosed.
Id. at 107.
  Although these early cases recognized the existence of the state secrets privilege, it was not until after World War II that this doctrine's "lineaments [were brought] into reasonably sharp focus." Ellsberg, 709 F.2d at 56. In the seminal case of United States v. Reynolds, 345 U.S. 1 (1953), a lawsuit was brought against the United States for the wrongful death of three civilians who were aboard a B-29 military airplane that crashed in Georgia. Id. at 2-3. The military crew and the civilians aboard the airplane were conducting a test of secret electronic equipment when the plane crashed. Id. at 3. During the pretrial phase of the litigation, the plaintiffs sought discovery of the government's accident investigation report and the statements of the surviving crew members. Id. The government opposed the plaintiffs' discovery motion, claiming that Air Force regulations prevented the disclosure of the requested information. Id. at 3-4. Following the district court's grant of the plaintiffs' discovery motion, the Secretary of the Air Force sought reconsideration and filed a formal "Claim of Privilege," asserting that the documents should not be produced "for the reason that the aircraft in question, together with the personnel on board, were engaged in a highly secretive mission of the Air Force." Id. at 4. In addition, the Judge Advocate General of the Air Force filed an affidavit attesting to the fact that documents could not be produced "without seriously hampering national security, flying safety and the development of highly technical and secret military equipment." Id. at 4-5. The district court denied the government's motion for reconsideration and ordered the government to produce the documents. Id. at 5. The government subsequently declined to produce the information and the district court "entered an order . . . [which indicated] that the facts on the issue of negligence would be taken as established in [the] plaintiffs' favor[,]" and entered a final judgment for the plaintiffs. Id. In reversing the district court's decision, the Supreme Court began its analysis by noting that
[j]udicial experience with the privilege which protects military and state secrets has been limited in this country. English experience has been more extensive, but still relatively slight compared with other evidentiary privileges. Nevertheless, the principles which control the application of the privilege emerge quite clearly from the available precedents. The privilege belongs to the Government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.
Id. at 7-8 (emphasis added) (footnotes omitted). The Reynolds Court went on to note that the
 
court must be satisfied from all the evidence and circumstances, and from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. If the court is so satisfied, the claim of the privilege will be accepted without requiring further disclosure.
Id. at 9 (internal quotations and citation omitted). As a general rule, the Supreme Court stated that
 
the showing of necessity which is made will determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate. Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake. A fortiori, where necessity is dubious, a formal claim of privilege, made under the circumstances of this case, will have to prevail.
Id. at 11 (emphasis added) (footnote omitted).

  With the Reynolds case establishing the contours of the invocation of the state secrets privilege, those cases that have followed have attempted to sharpen the focus of the scope of judicial inquiry into this privilege. The District of Columbia Circuit has stated that "[t]o some degree at least, the validity of the government's assertion must be judicially assessed." Molerio v. FBI, 749 F.2d 815, 822 (D.C. Cir. 1984). In this regard, the Reynolds Court had cautioned that "[j]udicial control over the evidence in a case cannot be abdicated to the caprice of executive officers." 345 U.S. at 9-10. And, the District of Columbia Circuit noted that "[t]o properly fulfill its obligations, while according the utmost deference to the executive's expertise in assessing privilege upon grounds of military or diplomatic security, a court must ...


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