Intelligence panels ignored CIA officer's pleas
Reform of the state secrets privilege, which allows the CIA and similar agencies to seek the dismissal of lawsuits by claiming they would harm national security, can't come come soon enough for ex-CIA officer Kevin Shipp.
Last week Shipp went public with his allegations that CIA abused its classification powers by covering up toxic contamination that he says sickened him and his family at a secret agency location in the southwestern United States.
Left out of that story was Shipp's account of how he and his lawyers had written every member of the House and Senate intelligence committees nearly a decade ago with allegations that the CIA was suppressing evidence of chemical and biological contamination on the base.
None of the committee members responded, Shipp says. His congressman, Frank R. Wolf (R-Va.), who is not on the intelligence committee, did make inquiries to the CIA on his behalf in 2007, but the agency “never returned his calls,” Shipp says. “He and his chief of staff both tried several times, over several weeks.”
Wolf’s spokesman Dan Scandling called Shipp’s account “accurate.”
The CIA, while not commenting directly on the Shipp matter--which remains classified--suggested it did not agree.
“We take very seriously our obligation to respond to all members of Congress, including Representative Wolf,” CIA spokeswoman Jennifer Youngblood said.
The Senate intelligence committee declined comment on the Shipp case. The House intelligence committee did not respond to a request for comment.
Shipp, who won commendations for his work over a 17-year career, resigned from the spy agency in 2002 after what he says was two years of harassment and illegal surveillance prompted by his complaints about toxic contamination on the base, linked to the disposal of weapons, that seriously sickened him and his family with a wide array of serious illnesses, some of which persist to this day.
On Dec. 12, 2004, the CIA agreed to a mediated settlement that awarded the Shipps $400,000 and apologies for their problems. But days later agency high-ups rejected the agreement and offered them a much smaller amount in a “take it or leave it” deal, Shipp wrote in an unpublished manuscript that was heavily redacted by agency vetters.
Subsequently the CIA won a ruling from U.S. District Court Judge Orlando L. Garcia in San Antonio to dismiss the Shipps' lawsuit on grounds that litigation would threaten national security, udner the state secrets privilege.
Why the CIA would risk a major controversy over such a relatively minor incident and miniscule amount of money remains a mystery.
One theory proposed by Shipp is that the agency wanted to protect its secret presence at the base. Another is that CIA officials rejected the mediated settlement because they suspected the Shipps--wrongfully, they say--of leaking their case to a reporter.
But a retired government official with long experience in national security cases said “in my experience CIA would rather litigate than pay.”
“That they made an offer and then backed out is an indication that paying one might open the door to paying others,” added the former official, who agreed to discuss such a sensitive issue only on condition of anonymity
By going public last week, Shipp risks arrest and prosecution for the unauthorized disclosure of classified information, which has civil and criminal penalties, says Mark Zaid, a Washington lawyer who specializes in CIA employee complaints and who represented Shipp early in his dispute. “Violation of the court's order could entail contempt of court and various penalties,” Zaid added.
"Most likely there will be a contempt of court hearing," said the retired official. "Depending on what he has said, he might be prosecutable, but that would probably raise the facts at the basis of the claim of privilege." At that point, he said, the "CIA might wish it could walk the cat back"--settle the case--but it would be too late.
Perhaps for that reason alone, said another legal analyst on condition of anonymity, "I predict nothing" will happen.
The Justice Department declined comment on the matter.
Periodic legal and legislative challenges to the state secrets law have failed. But last month the Supreme Court agreed for the first time to hear a case involving a dispute between defense contractors and the Navy over the development of the A-12 Avenger stealth aircraft. A decision is expected by June.
The state secret principle was established in a 1953 case, U.S. v. Reynolds, in which the widows of three technicians killed when a B-29 exploded over Georgia sued the Air Force for accident reports and interviews with survivors. The Supreme Court sided with the government’s claim that nothing could be revealed about the incident without grave damage to national security.
When documents were declassified nearly a half century later, however, it was revealed that an engine fire caused the crash. New litigation but ultimately unsuccessful litigation was filed charging the government with misclassifying information to cover up mechanical problems that had nothing to do with the aircraft's sensitive mission.
Likewise, Shipp’s lawyers argued that the CIA was using the state secrets privilege “as a sword” to block their client’s legitimate claim of injury on the base, not “a shield” to protect rightfully-classified secrets. They said the CIA was “creating a ‘cover-up’ of the evidence and cloaking [Shipp’s] injury by claiming ‘National Security.’”
Government privacy expert Steven Aftergood argued much the same on Monday.
"The state secrets privilege is not a license for the government to violate the law, and it is not a 'get out of jail free' card. Using the privilege to shut down litigation against the government is unjust--unless the government provides an alternate venue for adjudicating claims against it," said Aftergood, editor of Secrecy News.
Aftergood pointed out that in September 2009 Attorney General Eric H. Holder, Jr. declared that “credible allegations of government wrongdoing” in a state secrets case would be referred to the agency inspector general for review. "But there is no record that any such referral has ever taken place," Aftergood said. "The result is that the privilege itself has become an instrument of injustice."
Shipp is glad his case is finally out in the open, no matter the risk to him.
"One thing that is for sure with this story--everything that occurs with it will be in public view," he said Monday. "That is how a constitutional democracy functions. It is only when they can get away with doing corrupt things in secret that they can pull it off."
"Of course," he added, "I am not talking about legitimate secrecy, which is necessary to protect true national security. I laid my life down for that."
| February 14, 2011; 5:50 PM ET
Categories: Congress, Intelligence, Justice/FBI, Lawandcourts | Tags: Kevin Shipp; Rep. Frank R. Wolf; Mark Zaid
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