CIA Succeeds in Declaring Another African-American Man Alleging Discrimination a State Secret

CIAAmong the many secrets kept from the jurors in the Jeffrey Sterling trial, perhaps the most absurd was the means by which CIA had managed to defeat Sterling’s Equal Opportunity lawsuit: by invoking State Secrets over the details of his employment. When the defense tried to raise that point when cross-examining FBI Special Agent Ashley Hunt, in part to show how closely Sterling’s fight to the Supreme Court tracked his conversations with James Risen, Judge Leonie Brinkema ruled that the details weren’t relevant; “it’s relevant that the case was going on for some time.”

The very same performance reviews and testimony from covert status colleagues deemed too secret to be used against the CIA in Sterling’s EEO lawsuit formed the core of the case against Sterling.

Yet during the very same weeks as Sterling’s fate was being sealed by those now declassified materials, CIA was at it again: claiming that an African-American man, suing the CIA under the pseudonym Jacob Abilt for discrimination both because of his race and his disability, narcolepsy, could not pursue those claims because there was no way to introduce his performance reviews and obtain the testimony of other covert employees without exposing state secrets.

Courthouse News Service reported on the case on Wednesday.

Abilt first sued the CIA in Washington, DC in February 2014, claiming that while serving as a Technical Operations Officer for the agency, he had been harassed, and ultimately fired, because of the disability CIA knew of when they hired him in June 2006, as well as his race. Abilt claimed that rather than adhere to the accommodation the Agency had agreed to, his supervisors started mocking him, and imposed additional job reviews. Then, after giving Abilt an “unsuccessful” performance rating in August 2011, the CIA fired him.

As the CIA did with the lawsuit Sterling filed in New York in 2002, the CIA succeeded in transferring Abilt’s suit to Eastern District of Virginia in August 2014. Almost immediately thereafter, the CIA informed the court it was considering invoking state secrets, claiming “the potential disclosure of the significant amount of classified information that would be subject to discovery in this case could reasonably be expected to cause serious and in some cases exceptionally grave damage to the national security.” Then, after stalling for a period, on December 5, 2014, CIA moved to dismiss the case on state secrets grounds, accompanied by a state secrets declaration from CIA Director John Brennan (who had been involved in rejecting Sterling’s EEO claims 15 years ago). In their argument for dismissal, the CIA relied on (properly, from a legal standpoint) the 2005 judgment against Sterling by the Fourth Circuit holding that the CIA can dismiss EEO suits using state secrets, though Abilt argued his case was distinct from Sterling’s because he and the CIA could rely on performance reviews to litigate the case. A few weeks after Abilt made that argument, performance reviews redacted in just such a manner were introduced at the Sterling trial.

On February 10, 2015, Judge Gerald Lee sided with the CIA and dismissed Abilt’s complaint.

Not only does it appear that the CIA continues to harass employees and ultimately get rid of them when they fight to be treated fairly regardless of race, religion, or disability.

But the judges in Eastern District of Virginia are letting the CIA have it both ways: At the very same time it is letting the agency dodge a lawsuit by claiming employment information would risk grave harm to the country, that same information is being introduced in another courtroom so the CIA can send a former employee to prison.

Both these claims — that the information both can’t be and can be introduced safely in a courtroom — can’t be true.

Update: The first paragraph of this post has been updated to reflect the basis on which Brinkema ruled the state secrets declaration irrelevant.

About Marcy Wheeler

Investigative journalist Marcy Wheeler writes the "Right to Know" column for ExposeFacts. She is best known for providing in-depth analysis of legal documents related to "war on terrorism" programs and civil liberties. Wheeler blogs at emptywheel.net and publishes at outlets including the Guardian, Salon and the Progressive. She is the author of Anatomy of Deceit: How the Bush Administration Used the Media to Sell the Iraq War and Out a Spy. Wheeler won the 2009 Hillman Award for blog journalism.