Justice Department Caves In: Allows Publication Of Retroactively Classified Info

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Justice Department Caves In: Allows Publication Of Retroactively Classified Information

Project on Government Oversight & Public Citizen

FOR IMMEDIATE RELEASE: February 22, 2005

Contact: Beth Daley, POGO, 202-347-1122, beth@pogo.org
At Public Citizen, Michael Kirkpatrick (202) 588-7728, or LuAnn Canipe (202) 588-7759

Justice Department Caves In: Allows Publication of Retroactively Classified Information

Lawsuit Challenged Classification of Public Information

WASHINGTON, D.C. - A hearing scheduled for this morning before U.S. District Judge John D. Bates was abruptly cancelled after the Justice Department gave up and admitted that the information it had retroactively classified could be released to the public. Last June, the Project On Government Oversight (POGO) sued then-Attorney General John Ashcroft and the U.S. Justice Department (DOJ) for retroactively classifying information related to whistleblower Sibel Edmonds' allegations of wrongdoing in an FBI translation unit. The suit alleged that the retroactive classification was unlawful and violated POGO's First Amendment right to free speech.

The information at issue was presented by the FBI to the Senate Judiciary Committee during two unclassified briefings in 2002. The information was referenced in letters from U.S. Sens. Patrick Leahy (D-Vermont) and Charles Grassley (R-Iowa) to DOJ officials. The senators' letters were posted on their Web sites but were removed after the FBI notified the Senate in May 2004 that the information had been retroactively classified (see http://www.pogo.org/p/government/ga-040601-classified.html).

During a June 2004 Senate Judiciary Committee hearing, Ashcroft defended the decision to retroactively classify the information, claiming that its further dissemination could seriously impair the national security interests of the United States, even though for more than two years the information was widely available to the public.

"The fact that the Justice Department gave up on the eve of the hearing shows that this information was classified for an improper purpose," said Danielle Brian, POGO's executive director. "If this information could ever have harmed national security, the Justice Department would never have caved in."

Throughout the litigation, POGO had offered to dismiss the suit if the DOJ stated that POGO could discuss and disseminate the letters without fear of prosecution, but the agency refused and instead claimed that POGO lacked standing to maintain the suit because the threat of criminal sanctions did not injure POGO. The DOJ backed down when faced with the prospect of tough questions at the hearing by a federal judge.

POGO was represented in the case by lawyers from the Public Citizen Litigation Group and the Institute for Public Representation at Georgetown University Law Center.

"Typically, classification of government-held information does not interfere with free speech because the information remains in the exclusive control of the government," said Michael Kirkpatrick, an attorney with the Public Citizen Litigation Group. "This case was unusual, because the government classified the information after it was public. This after-the-fact classification violated POGO's First Amendment rights, because POGO faced the threat of prosecution if it disseminated the information. POGO suspected all along that the information was classified not to protect national security secrets, but to stifle congressional oversight and shield the FBI from legitimate public inquiry. Apparently, POGO was right."

To view the Department of Justice's letter reversing the retroactive classification and other documents from POGO vs. Ashcroft, go to:
http://www.pogo.org/p/government/pogovsashcroft.html.

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Public Citizen is a national, nonprofit consumer advocacy organization based in Washington, D.C. For more information, go to www.citizen.org. POGO is a politically independent, nonprofit watchdog that strives to promote a government that is accountable to the citizenry. For more information, go to www.pogo.org. Congrats to Sibel Edmonds, POGO, Bill Doyle and the many whistleblowers and concerned Americans who have supported this case. This is a small but significant victory toward the ultimate truth about 9/11. Another 9/11 must not pass with the scores of unanswered questions and unreported testimony hanging over the 9/11 Commission and the Nation.

Kyle F. Hence

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19 June 2002 Letter from Sens. Leahy and Grassley to DOJ Inspector General Fine

June 19, 2002

The Honorable Glenn A. Fine
Inspector General
Department of Justice
Washington, D.C. 20530

Dear Mr. Fine:

The Senate Judiciary Committee has received unclassified information from the FBI regarding allegations made by Ms. Sibel D. Edmonds, a former FBI contract linguist, that your office is currently investigating. We request that, as this investigation progresses, you consider the following questions on this matter:

(1) Ms. Edmonds has alleged, and the FBI has confirmed, that the FBI assigned a contract language "monitor" to Guantanamo Bay, Cuba, contrary to clear FBI policy that only more qualified "linguists" be assigned to Guantanamo Bay. What circumstances led to the contract language monitor being considered qualified for this assignment, and what were the consequences, if any, for the effectiveness of the interrogation of those being detained at Guantanamo?

(2) Ms. Edmonds has alleged, and the FBI has confirmed, that another contract linguist in the FBI unit to which Ms. Edmonds was assigned failed to translate at least two communications reflecting a foreign official's handling of intelligence matters. The FBI has confirmed that the contract linguist had "unreported contacts" with that foreign official. To what extent did that contract linguist have any additional unreported or reported contacts with that foreign official? What counterintelligence inquiries or assessments, if any, were made with respect to those contacts? Do you plan to interview field office and headquarters counterintelligence personnel regarding this matter?

(3) The FBI has said that, to review the other contract linguist's work that Ms. Edmonds questioned, it used three linguists in its language division, a supervisory special agent, and special agents who worked on the case that generated the communications under review. Was this a "blind" review by the linguists, or did they know the person whose work was under review? Were the linguists sufficiently independent to make objective judgments about the translations in question? Would it have been appropriate to use linguists from outside the FBI?

(4) The FBI has said a determination was made by the supervisory special agent that the contract linguist whose work was reviewed made a mistake and that the matter was a training issue. Did this agent's position affect his ability to render an objective judgment? What input did the other special agents provide? Did their involvement in the case that generated the communications affect their ability to make an objective judgement about a person with whom they had worked on the case? Would it have been better to ask other counterintelligence agents to assess the importance of the untranslated information and the reason it was not translated?

(5) To what extent is the credibility of witnesses regarding Ms. Edmonds' allegations affected by their continuing employment in the same translation unit and under the same supervisor where the contract linguist discussed in question (2) is employed.

(6) The FBI has said that Ms. Edmonds prepared two classified documents with respect to her allegations on her home computer without authorization and that one witness reported Ms. Edmunds discussed classified information regarding her allegations in the presence of three uncleared members of her family without authorization. Would these actions disqualify her from a security clearance, given the circumstances of her concern about a foreign attempt to penetrate or influence FBI operations at her workplace?

(7) What guidance is provided to FBI contract linguists as to the steps they should take if they are concerned about a possible foreign attempt to penetrate or influence FBI operations? How well is this guidance understood by contract linguists in the FBI translation centers and other FBI personnel who would handle such matters?

(8) What improvements, if any, are needed to encourage FBI contract linguists and other FBI contract personnel to come forward with such counterintelligence concerns and to ensure that they are not adversely affected as a result of seeking to assist FBI counterintelligence efforts? Was Ms. Edmunds' case handled in a manner that would encourage such reporting in the future?

Please let us know the timetable for your investigation and advise us of the results.

Sincerely,

PATRICK LEAHY
Chairman, Committee on the Judiciary

CHARLES E. GRASSLEY
United States Senator

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13 Aug 2002 Letter from Sens. Leahy and Grassley to Attorney General Ashcroft

August 13, 2002

Hon. John Ashcroft
Attorney General
United States Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530

Dear General Ashcroft:

We are writing jointly in order that you might allay our concern about the status of the investigation into allegations made by Sibel Edmonds, a former contract linguist in the Washington Field Office of the FBI. Although we understand that the matter is currently under investigation by the Inspector General, we are troubled that the Department of Justice, including the FBI, may not be acting quickly enough to address the issues raised by Ms. Edmonds' complaints or cooperating fully with the Inspector General's office.

By way of background, Ms. Edmonds first raised concerns about security problems and the integrity of important translations earlier this year. Unfortunately, nearly every person at the FBI who was notified of the situation reacted by questioning why Ms. Edmonds was "causing trouble." Indeed, the FBI's first internal security action in this case focused on Ms. Edmonds, instead of the allegations that she raised in good faith as a whistleblower and which bore on national security and the war against terrorism.

Ms. Edmonds has made a number of serious allegations, some of which the FBI verified during an unclassified briefing for Judiciary Committee staff on June 17. First, Ms. Edmonds has alleged that a contract monitor in her unit ("monitor") chose not to translate important, intelligence-related information, instead limiting her translation to unimportant and innocuous information. The FBI has verified that this monitor indeed failed to translate intelligence-related information, but has attributed the failure to a lack of training as opposed to a malicious act.

That conclusion is directly related to Ms. Edmond's second allegation. Ms. Edmonds alleged that the same contract monitor once worked for an organization associated with the target of a counter-intelligence investigation and that the monitor had unreported contacts with a foreign national who was a member of the target institution. Additionally, Ms. Edmonds states that some of the mistranslated recordings on which the monitor actually worked contained conversations by this same foreign national with whom the monitor had such contacts. Finally, the foreign national disclosed in recorded conversations that he handled intelligence matters. This fact was among the information that was not translated or summarized by the monitor.

Even after verifying these allegations, the FBI downplayed the importance of this matter and seemed to imply that it had ceased looking into the complaints as a security matter until after the Inspector General Office finishes its investigation. Anyone who remembers the long-time treachery of former FBI Agent Robert Hanssen would be concerned at this reaction. For years, Hanssen's bizarre actions were also written off as minor security breaches and unworthy of serious consideration. If even routine diligence had been exercised earlier, Hanssen could have been stopped from doing untold damage. The FBI needs to learn from its mistakes.

In addition to general concerns raised by this case, we have several specific concerns we wish to raise for your review. First, we have learned that a person central to the investigation -- the monitor referred to earlier -- will be leaving the country in early September, which most likely will be before the investigation is resolved. If you or your staff would like to know the identity of the monitor, please contact Inspector General Fine's office, with whom Senator Grassley's staff has been in touch. The monitor may hold dual citizenship with the United States and a foreign country and may possess a valid passport issued by that foreign country. Thus, there will be little or no assurance that the monitor will return or cooperate with an investigation in the future. Based on these facts, we would like your assurance that you are satisfied that there has been and will be no delay that will prejudice, in any way, the outcome of this investigation.

Furthermore, we would like your assurance that the Department of Justice, including the FBI, will fully cooperate in all aspects of the inquiry. For instance, we draw your attention to the fact that the FBI currently opposes depositions of the monitor and her husband as part of the investigation into this case. The FBI takes this position despite the fact that the monitor is no longer employed by the FBI, that the monitor's husband never worked at the FBI and even though the military agency that employs the monitor's husband does not oppose a deposition. Moreover, we understand that the monitor and her husband have signed a letter stating they will make themselves available for depositions. It is unclear, then, why the FBI is taking this position in the wake of such important allegations bearing on national security. We hope that you will ensure that the FBI is fully compliant with the Inspector General's inquiry as it proceeds.

Finally, we are concerned about the most crucial evidence in the case -- the recordings that were allegedly improperly translated. Because these bear directly on the veracity of Ms. Edmonds' allegations, we seek your assurance that the recordings will be properly maintained, turned over to the Inspector General's Office and promptly translated by a competent and independent authority. That way the validity of the complaint can be quickly evaluated.

We know that you share our concern that the FBI address issues bearing on national security in a prompt manner, regardless of whether or not they cast the FBI in a positive light. Only by honest evaluation can the FBI learn from its past mistakes. We thank you in advance for your cooperation in this matter. We request a reply in writing by Wednesday, August 28, 2002.

Sincerely,

Sen. Patrick J. Leahy

Sen. Chuck Grassley
Chairman, Ranking Member
Subcommittee on Crime and Drugs

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28 Oct 2002 Press Release and Letter from Sen. Grassley to FBI Director Mueller

For Immediate Release
Monday, October 28, 2002

Grassley Seeks Overhaul of FBI's Translation Unit
Iowa Senator Cites High Stakes in War on Terrorism

WASHINGTON — Sen. Chuck Grassley has asked the FBI Director to conduct a top-to-bottom review and to arrange an independent examination of the FBI's translation capabilities given the importance of accurate and timely translations to homeland security and the war on terrorism.

Grassley made his request following a story broadcast last night on CBS' 60 Minutes featuring the testimony of Sibel Edmonds, an FBI whistleblower who lost her job as a translator after raising questions about problems within the translation unit at FBI headquarters in Washington.

Grassley is the ranking member of the Judiciary Subcommittee on Crime and Drugs. He is an outspoken watchdog of the FBI, where he has pushed for numerous reforms since 1996. Here is a copy of Grassley's letter to Mueller.

October 28, 2002
The Honorable Robert Mueller
Federal Bureau of Investigation
935 Pennsylvania Avenue, NW
Washington, DC 20535

Dear Director Mueller:

I am writing to you about my concern with the Federal Bureau of Investigation's translation capabilities.

I believe it would be prudent for you to arrange for an independent audit and general review of the FBI's translation units, particularly at the Washington Field Office.

A review team with members from the National Security Agency, Central Intelligence Agency, State Department and military branches should conduct a top-to-bottom examination of the FBI's translation units for performance issues such as timeliness, efficiency, accuracy and management.

I make this request for several reasons.

First, the FBI's translation capabilities are crucial to the war on terrorism, particularly preventing attacks. Translations provide essential intelligence to agents investigating suspected terrorists.

Second, numerous reports have documented problems with the FBI's translation capabilities. These reports, by organizations such as the General Accounting Office and the House and Senate Intelligence Committees, highlight shortages in qualified and proficient translators.

Third, I am not entirely confident in information that FBI officials have provided to the Judiciary Committee to the effect that translation issues are no longer a problem. At a June 17, 2002 briefing regarding the case of Sibel Edmonds, FBI officials stated that the bureau was nearly finished with translating existing documents. Am I to believe that the FBI has translated all existing foreign language documents and conducted analysis of the information?

I am also concerned about how long it takes to translate documents and recordings. The FBI in most cases does not know what it's listening to and thus cannot prioritize the translation. So if agents have a recording of terrorists planning an impending attack, the translation may come too late.

I understand that Ms. Edmonds' case remains under investigation by the Justice Department Inspector General. Regardless of that specific case, however, it is clear not only from her information but from other government agencies that the FBI's translation capabilities need improvement.

Translation capabilities depend on more than just sheer numbers. Operating rules, guidelines and protocols for translation practices and accuracy are just as important, if not more so, for the FBI to conduct a successful war on terrorism and to protect the nation from future attacks.

I would appreciate a reply with a statement of your intentions to this regard by Monday, November 25, 2002. Thank you.

Sincerely,
Chuck Grassley
Ranking Member
Subcommittee on Crime and Drugs