Classified Woman (21 page)

That night I couldn’t sleep, nor even shut my eyes. By four in the morning I was showering, and by six, all dressed and ready. I sat in the kitchen waiting for Matthew to wake up.

My husband wanted to make a big breakfast but even the thought of food made me sick. I drank two coffees instead. He asked if I had prepared a statement. I shook my head no.

We drove to the DC courthouse in fitting rain—as was typical for every one of my canceled court date appearances before the press. Matthew dropped me at the courthouse entrance then went to find a parking spot. The cameras were already set up out front, and a dozen or so reporters were there, mostly from alternative media and the foreign press, along with fifty or so people; friends and supporters. Ellsberg too. I walked up and gave him a big hug. I was so glad to have him there, his support.

Beeson and the rest of the team had not yet arrived. I ducked under Dan’s umbrella and waited anxiously. A man whom I’d never before met walked up and said he was a supporter from Kansas and had driven all night to get here—for solidarity. That was so touching. Here I was, surrounded by love and support.

Several reporters asked for comments. I told them I had nothing yet and asked them to wait until the hearing was concluded—
if there ends up being one
, I thought. I didn’t know a thing about our status. I had to wait for Ann and the rest of the crew to find out.

At last the team arrived: Ann, Ben, Melissa and Art Spitzer. I asked Ann about the status. We would go inside, she said, to a private room designated for the plaintiffs, where we could discuss the case until called for the hearing. Once in the room, we were told that the court had not yet responded to the claim filed by the coalition of major newspapers and reporters. They hadn’t responded to our request for an explanation either. We had to sit and wait.

I was bewildered. We had less than thirty minutes to the hearing. How could they wait to the last minute? The reporters and supporters too looked disgusted, but we had no other choice.

A few minutes later, word came down: “No Response.” The court—our appellate judges—had rejected the reporters’ claim out of hand; no reason or justification was provided. The same went for our request: no reason was provided for the exclusion of the public and reporters from my now CLOSED hearing.

What else could we do to counter this? My attorneys shook their heads: nothing. I asked if we would just stand there and take it. They had no reply. I started pacing, until finally we were called to the hearing room. There was one case ahead of us and we were asked to take a seat in the back and wait.

Their hearing took almost two hours. I looked at my watch every five minutes, fidgeting. I turned around and saw that every row had filled up, with many from the mainstream media. Many others had gathered outside the room, waiting to see what would develop.

Finally, the hearing for those ahead of us concluded. As their attorneys began packing up to leave, Judge Ginsburg, the lead judge, motioned to one of the court security guards. He whispered something to the guard, then leaned over to Judge Sentelle and whispered something in his ear. I wondered what they were cooking up. I didn’t have to wait to find out.

When the other group’s attorneys had left, Judge Ginsburg made his announcement.

“We now are going to ask everyone in this room, except for the plaintiff and defendant attorneys, to leave this courtroom. As of now, this courtroom is in closed session. Guards, please escort everyone out.”

Some of the reporters stood to leave on their own, while others waited to be escorted out. A few had to be removed by force, shouting appropriate slogans such as, “Where is our Constitution?” and “This is no justice!”

I watched the courtroom empty of all my friends, supporters and a handful of reporters. I almost broke down and cried as the guard approached my husband. He was my partner; he was affected by all this as much as I; he was my rock. I asked Ann to do something. She shook her head and said he had to follow the order. The guard escorted my husband out. In my lap I made a tight fist and dug my nails into my palm until I drew blood. With so much rage and frustration bottled up inside me, I had to poke holes in myself to let some out before I exploded.

The three judges sat and waited for my attorney to take her stand before them. Ginsburg, with his white goatee, smirked during the entire time. Sentelle, the ruddy fat judge, always deferred to Ginsburg for his cues; and Henderson, the scrawny-looking judge, remained silent throughout, and stared into space as if stoned.

According to the appellate hearing protocol, the plaintiff’s attorney goes first, followed by the defendant’s attorney, and finally, a Q & A session. Each party would be allowed precisely five minutes to deliver a statement, and then answer any judge’s questions to clarify points.

Beeson went first and presented our case, arguing against state secrets on the grounds that it was meant to be invoked to exclude specific evidence, documents or information—not to disallow the entire case from proceeding in court, as had happened with mine. Furthermore, referring to all the already public records and documents (such as congressional letters, the IG report, and hundreds of articles), she made it clear to the judges that to argue my case I didn’t even need to seek anything classified for use as evidence.

None of the judges were having it. Ginsburg asked an irrelevant question, suggesting another venue for my case—that we engage in arbitration with the FBI directly. (Ann calmly explained why that could not be done.) Sentelle cracked wise to some FBI attorneys in the room, evoking forced and phony laughter. I stared unamused, waiting for them to move on.

Now it was the defendants’ turn. The Justice Department and the FBI had more than a dozen top-flight attorneys between them, which was overkill. Our party consisted of six, including me. As we waited for their attorney to take his stand, Ginsburg cleared his throat and spoke into the mike.

“Now we have to ask the plaintiff and her attorneys to leave the room. Due to the sensitivity and secrecy involved in the case, we have decided to exclude you from the hearing room while the government presents and argues its case.”

We all froze in place. What in the world was happening? This was unheard of: the plaintiff and her attorneys being excluded from the court hearing, forbidden to hear the defendants’ argument? How were we supposed to argue against what we didn’t even know? How were we going to respond to something we were not allowed to hear? Even Kafka would have been shocked.

I turned to Ann. “I am not leaving. This is absurd. Let’s stay and fight this. We shouldn’t allow this to happen. We can’t let them get away with this. I am not leaving.” I was shaking, my whole body was shaking.

Ann put her arm around my shoulder and leaned very close and whispered, “Sibel, you’re right. I know. I know this is ridiculous. However, we have to obey the judges at this point. This isn’t over yet. They are not going to rule today. We have plenty of time to address this, tackle this later. Now, we have to be respectful and comply. Otherwise they’ll have us arrested.”

I looked up in disbelief. “They are the ones who should be arrested. These judges are criminals; they are butchering our Constitution and rights!”

Patiently and gently, Ann led me out of the room; the rest of our team followed. Art’s face was red. I could see smoke coming out of his ears. Three court security guards accompanied us, asking that we remain in the hall, in case the judges decided to bring us back in for questions. Once outside the courtroom, I watched the guard shut the doors, then turn and stand at attention before them, as though guarding against any eavesdropping. I was trembling violently now, ready to scream; I was close to breaking down.

We waited in the hall for almost fifteen minutes while the defendants in the courtroom fed the judges anything they pleased, unopposed, unchallenged. I couldn’t stand still and kept pacing the hall.

At the end of our wait, the court clerk appeared to notify us that the session, the hearing, was concluded. We now could leave. It was over. My one and only hearing—from which I, myself, was excluded—was at an end.

As we walked to the elevators, I was trying to think of what to say to the press. They were waiting. How was I to deliver a statement without stammering, breaking down and crying? How was I to handle the rage, frustration and crushing sense of defeat before that crowd?

Ann stopped me before we stepped out. “Sibel, I know you’re angry. I’m angry too; we all are. But please,
please
don’t say anything negative about the judges up there. You don’t want to piss them off. This is not over yet. They still have to rule. You don’t want to antagonize them at this point. Try to set a positive tone; be mild.”

“Screw those judges,” I snapped. “They don’t belong on the bench. I am not going to lie about this. I am not going to help them cover this up. The public has the right to know about what’s happening inside these courtrooms. They have the right to know about these judges. I didn’t do it in Walton’s case; I regret that …”

Ann tried to persuade me. I walked away fast, out of the building. There were so many people standing in the rain looking drenched and bedraggled, waiting for me. There were reporters too, and a couple of TV cameras. I stepped forward and positioned myself before a dozen microphones. I tried to breathe; I couldn’t. I stood silently and took a minute or two to force back the sob in my throat and regain my voice. Matthew came and stood next to me, and held an umbrella over my head.

I began to speak. I explained what had happened inside. I put forth the implications of what had taken place. I remember pausing, reflecting on just who was before me, then telling them, “If you think this is all about me, if you think this is all about one whistleblower’s case, you are wrong! This is about you too. This is about all of us, our rights. The implications of this will affect all of you, not only me. If they can get away so easily with invoking a ridiculous privilege like this, they will not stop with this case. They are going to invoke this time after time; whenever they want to cover up their own criminal acts, whenever they want to leave you all in the dark …”

I had no idea how soon I would be proved right in that prediction. After my case, the administration began to invoke state secrets right and left. In the coming years they would invoke it many times. It didn’t end with that administration: the trend would continue with the next administration, full force.

As I was speaking, I noticed Congresswoman Carolyn Maloney, representative from New York, walking toward me. She came and stood beside me. I stepped aside and offered her the mike. First she hugged me; then she delivered a powerful speech on the injustice and transparent abuses heaped on me and my case, made all the more egregious since my vindication. The reporters kept writing, cameras kept flashing in our faces. I recognized my new French partners, Mathieu and Jean, filming the scene, capturing that moment in the rain. They were soaked. They had been there since eight that morning.

Then Ann delivered a statement, ever succinct and articulate, followed by Dan Ellsberg, who gave a passionate speech. I couldn’t stay a minute longer. My legs were giving out. I hadn’t eaten for more than a day, and with all the feelings I fought so hard to repress, I didn’t have an ounce of energy left.

I left them all without saying a word. I had to go. As I walked to our car, refusing to stay under Matthew’s umbrella, the raindrops soaked my hair and face. No one could see I was crying.

Less than three weeks later, on May 6, 2005, the appellate court issued its decision, consisting of a single line:
Uphold the lower court’s decision and the State Secrets Privilege.
They did not cite a reason. They did not write an opinion, and gave no further explanation.

After seeing their attitude and what went on at my hearing, how could I have expected anything more from those judges? My ACLU attorneys were disappointed but not surprised. They promised this would not be the end of my case. They would take this to the highest court of the land, the U.S. Supreme Court.