Taking Liberties: The War on Terror and the Erosion of American Democracy (23 page)

They were joined by a number of other nonprofit organizations, some of which, like the American-Arab Anti-Discrimination Committee and the Council on American-Islamic Relations, specifically served Arab and Muslim populations, working with those communities on economic, cultural, or civil liberties issues. Other organizations joining the challenge to this provision did not particularly identify themselves with Arab or Muslim causes. Mary Lieberman, a social worker, was Executive Director of Bridge Refugee Services, a Knoxville, Tennessee–based ecumenical organization affiliated with Church World Services (a ministry of thirty-six Protestant, Orthodox, and Anglican denominations in the United States), and Episcopal Migration Ministries, which provided aid to refugees from anywhere.

Bridge had an Iraqi refugee client, Muwafa Albaraqi, who, in 1991, had participated in an unsuccessful uprising against the government of Saddam Hussein, with the encouragement of the United States. When this effort failed and he had to flee Iraq, Bridge helped him to settle in Tennessee, find a job as a checkout clerk in a grocery store, enroll in a part-time electrical engineering program at the University of Tennessee, and apply for citizenship. Muwafa was alarmed and upset when FBI agents came to his workplace in January 2003 to question him, telling him the interview was not optional and insultingly asking him if he would engage in terrorism if an Iraqi agent cut off his brother’s finger and sent it to him in the mail. He
saw no reason why the FBI should suspect him of anything. When he told his contacts at Bridge about this experience, they thought it not unlikely that the FBI might decide to cast its net wider if they wanted to know more about Muwafa, for whatever reason. The records that Bridge kept about people the organization helped, including notes on personal interviews, seemed a likely focus of interest. The FBI had already asked Bridge for records about some of its other clients, which Bridge had refused to turn over voluntarily as its records often covered a range of sensitive personal issues, sometimes including notes on family problems, substance abuse issues, or health issues a client had shared with an interviewer in connection with a request for help.
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So Mary Lieberman and Bridge decided to join the lawsuit.

Arguing that they were likely to be targeted because of the ethnicity, religion, or political associations of some or all of their members, the organizations told the court about numerous instances of FBI contacts with their members or clients, including Homam Albaroudi’s and Muwafa Albaraqi’s experiences. They also explained that the prospect of the government demanding their records was currently having a serious impact on their own and their members’ exercise of their First Amendment rights of speech and association. Mosque attendance had declined dramatically; members now insisted on giving donations to these nonprofit organizations anonymously. At least one person had insisted that the Muslim Community Association permanently expunge all records mentioning his name, for fear that the FBI might obtain the records and then subject him to scrutiny. “John Doe,” a formerly active member of the Muslim Community Association who wanted to remain anonymous in his affidavit because he was afraid of piquing the government’s interest, reported that he had stopped speaking out on issues that concerned him, had pulled back from his connection with the MCA, and had changed his customs of donating to charity. He took to heart the experience of the Muslim charities and was chilled in his speech, his associations, and his religious observances by the very existence of Section 215, for fear that government agents might find some reason in the MCA records to arrive at his door.
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The threat to the confidentiality of their business records also made it difficult for organizations like Bridge or MCA to do their work. Some of the groups, like some librarians, had begun to omit sensitive information from their own records for fear of compromising their members’, clients’, or patrons’ privacy. And many began to think twice about keeping some kinds of records at all. People like Muwafa Albaraqi were not likely to
share personal information with them if their organization’s computers and file cabinets were a way station to FBI databases. Fear of the consequences of candor might lead to self-censorship which, in turn, might prevent people in need from seeking or receiving meaningful help.

The government moved to dismiss the case on the ground that the organizations did not have standing—that is, could not prove that they had actually been injured—because they could not prove that they had in fact been targeted to receive Section 215 orders or that they were likely to be. In support of this argument, the government filed secret evidence about the use of Section 215, for the judge’s eyes only. The judge found herself in a difficult situation. She was obviously reluctant to dismiss the case for lack of standing on the basis of material the plaintiffs’ lawyers could not see and therefore could not answer, but she seemed equally reluctant to second-guess the government’s assertion that it could compromise national security to reveal how often Section 215 was or was not being used.

The government’s secrecy argument was based on the “mosaic theory.” This theory, which proliferated following 9/11, maintains that any tiny piece of information made available to the American people would also be available to potential enemies and might endanger our national security because it might then be combined with other tiny pieces of information to form a revealing picture of our antiterrorism strategy
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—a contention courts were finding difficult to assess. On the one hand, it is certainly true as a matter of observation that one apparently insignificant bit of information might turn out, in combination with other information, to be revealing. But on the other hand, this type of reasoning has no logical limit. Because there is no way for anyone to disprove the possible significance of any piece of information, taking this observation as a defense to any disclosure of any information gives the executive branch a blank check to withhold all information.
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And so the judge avoided deciding the government’s motion to dismiss for month after month and then year after year.

In October 2002, the ACLU had tried filing a Freedom of Information Act (FOIA) lawsuit in the District of Columbia to find out about the use of Section 215, but the judge in that case accepted the government’s mosaic theory argument—after reviewing secret submissions by the government—and denied the request.
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Following September 2003, when Attorney General Ashcroft declassified information about Section 215’s use in answer to the librarians, the ACLU tried again, requesting information about the total number of times FBI field offices had compiled Section 215 applications and sent them to FBI headquarters for further required approvals.
The District of Columbia district judge in the case seemed sympathetic to this request, noting the widespread public interest in the use of this power (mentioning the librarians, of course), but again deferred to the government’s national security claim because the D.C. Circuit Court of Appeals had affirmatively endorsed the mosaic theory.
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Secrecy was foiling the MCA’s lawsuit challenging Section 215 and also preventing the American people from having enough information to weigh in about that provision’s renewal at the Patriot Act reauthorization hearings.

The
MCA
case was still pending in April 2005, when sections of the Patriot Act including 215 were up for renewal. At a Senate reauthorization hearing, Attorney General Alberto Gonzales testified that, according to the most recent figures, Section 215 had been used only thirty-five times and never in a library or bookstore.
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The government lawyers in the
MCA
case then followed up by filing more secret evidence on the issue of whether the case should be dismissed, perhaps outlining the prospects for future use of Section 215. Once again the plaintiffs’ lawyers were not allowed to read the government’s submissions. Unable to resolve the dilemma secrecy had created, the judge continued to let the case languish undecided.

Finally, the judge found a way out. At the 2005 reauthorization hearings, several issues concerning Section 215 were debated. Although Congress did not revise the statute to require meaningful court participation as a precondition to seizure of library or other business records, Congress did amend Section 215’s nondisclosure provision. In response to litigation that will be described in
chapter 9
, Congress amended the provision by including an exception to the gag order in order to allow recipients of records demands under Section 215 to consult a lawyer and to enlist a court if they had concerns about the legality or constitutionality of a demand. In 2006, after this revision, the judge finally issued an opinion in the
MCA
case. She denied the government’s motion to dismiss, ruling that the plaintiff organizations did have standing, even if they could not show that they actually had been or would be asked for their records, because they reasonably feared that they would be targeted and also because Section 215 had a chilling effect on their own speech and associations. And so, three years after the complaint had been filed, she invited the plaintiffs to decide whether or not they still wanted to continue their challenge to the Patriot Act section in light of the recent revisions, which at least ameliorated the plaintiffs’ concern that it would never be possible to challenge a demand for records without risking criminal prosecution.
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The plaintiffs decided to drop the lawsuit and to use the opportunity afforded by the revised gag
order to challenge Section 215 orders if and when they were served. And thus the only court in a position to consider the constitutionality of this provision hung back and waited for Congress to act—for the unbelievable period of three years—instead of deciding whether this Patriot Act provision is unconstitutional. It has been impossible so far to get any court to make that decision.

Despite this protracted and frustrating litigation experience, Mary Lieberman, who now teaches social work at the University of Texas, describes her participation in this lawsuit on behalf of her clients at Bridge Refugee Services as “the privilege of a lifetime.”

Third-Party Records and the Fourth Amendment

Although the 2005 Patriot Act amendments did address the problem of Section 215’s gag order (albeit not fully, as later chapters will describe), they did not, as noted above, do anything to resolve the underlying constitutional problem—that government agents can search and seize private records without having to convince a court that they have probable cause or at least some real basis for suspicion. The Fourth Amendment issues at stake have not been addressed by the courts for two reasons. First is the ironclad theory of standing that the government raised in
MCA
. The federal courts only consider constitutional claims of people who can show that they personally have been injured by the practice they are challenging. The
MCA
court was persuaded that the members of the plaintiff organizations had standing because their own First Amendment rights were being affected even if the FBI never actually asked to look at their records. Fear that the FBI would do so was itself causing concrete harm to First Amendment values because people had become afraid to share information. But the people who have standing to raise Fourth Amendment claims, the subjects of the records at stake, cannot complain about invasion of their privacy if they do not know that their records are being seized. The whole point of the gag order is to ensure that targets will not learn that the FBI is seeking information about them. And so secrecy itself can prevent Fourth Amendment challenges from being brought.

The second problem is that, standing issues aside, courts are unlikely to find that targets have any Fourth Amendment rights in these circumstances.
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This is because the Supreme Court has interpreted the Fourth Amendment as irrelevant in situations where a person has exposed
information to a third party—like a bank or a telephone company. According to the Court’s rather breathtaking reasoning, we give up any “legitimate expectation of privacy” in information we voluntarily turn over to third parties, whether that information is our bank balance or the telephone numbers we call. Because our bankers and telephone companies have access to that information, in the Court’s view it all therefore becomes subject to government seizure without any of the procedural protections the Fourth Amendment would otherwise impose. In other words, the Fourth Amendment, in the Court’s interpretation, does not cover records in the hands of a third party.

Two cases in the 1970s established this courthouse door–closing idea. In
United States v. Miller
,
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Treasury agents bearing a defective subpoena had asked the presidents of two banks to produce “all records of accounts, i.e., savings, checking, loan or otherwise, in the name of Mr. Mitch Miller.” The bank presidents cooperated. Miller then complained that the government had violated his Fourth Amendment rights by first requiring his bankers to keep such records and then demanding the production of those records without a valid court order. The Court disagreed that the government’s doubly coercive actions mattered. By using a bank, the Court said, Miller had exposed his private information to his bankers and therefore assumed the risk that those bankers would share his information with the government. The Court considered it irrelevant that the bankers did not turn over the information voluntarily, or that using a bank may not really be optional in the modern world. The second case,
Smith v. Maryland
,
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applied the same exaggerated “assumption of risk” idea to allow government agents to obtain telephone records showing the telephone numbers Smith had called and from which he had received calls—on the theory that Smith had “voluntarily” shared that information with his telephone company and therefore could no longer expect that those numbers would remain private from anyone. To obtain the contents of telephone calls, the government would need a court order; to obtain telephone logs, the government was excused from paying attention to Fourth Amendment niceties.