Taking Liberties: The War on Terror and the Erosion of American Democracy (26 page)

The Library Connection

George Christian isn’t sure if it’s accurate to call him a librarian. As Executive Director of Library Connection of Connecticut, he works with computer systems in the libraries that belong to his consortium. It is certainly accurate to call him a true patriot. When he had an unexpected brush with the War on Terror, he put his personal comfort and convenience aside and stood up for principle—the principles of First Amendment freedom of speech and of democracy itself.

It all started on July 13, 2005, when George was handed a National Security Letter, on FBI letterhead:

Under the authority of Executive Order 12333, dated December 4, 1981, and pursuant to Title 18, United States Code (U.S.C.), Section 2709 (as amended October 26, 2001), you are hereby directed to provide to the Federal Bureau of Investigation (FBI) any or all subscriber information, billing information and access logs of any person or entity related to the following: IP address 216.47.180.118, Date: 2/16/2005; Time: 16:00 to 16:45 PM EST. …

You are further advised that Title 18, U.S.C., Section 2709(c) prohibits any officer, employee or agent of yours from disclosing to any person that the FBI has sought or obtained access to information or records under this provision.

George hadn’t known about the National Security Letter provision in Section 505 of the Patriot Act. Along with his librarian colleagues, he had been concerned about the “library provision” (Section 215, described in the last chapter, which watered down the standard for court-ordered seizure of library records). Librarians were worried about the consequences of allowing FBI agents to check out whether library users were checking out a biography of Osama bin Laden. They were also worried about how to handle their new role as assistant government agents. George had discussed with leaders of other library consortiums in Connecticut whether they should hire a lawyer to help them develop a privacy policy and procedures to cope with Patriot Act enforcement. But when Attorney General Ashcroft announced in September 2003 that Section 215 had never been used in a library or bookstore, George and his colleagues accepted the assurance and decided not to spend money on a lawyer. “We trusted them but apparently we shouldn’t have,” he says.
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A number of librarians were mystified by Ashcroft’s and then Gonzales’s statements that the controversial court order provision had never been used in libraries because FBI agents had come to them and demanded information about their patrons.
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It turned out that the FBI was indeed asking librarians for records, but using National Security Letters (NSLs) instead of the Section 215 court orders, so Ashcroft and Gonzales were technically correct. The NSL—a kind of do-it-yourself order the FBI and some other agencies can use to gather certain kinds of information—had started out as a narrow exception to consumer privacy laws but had expanded to cover not only financial records and credit reports, but also Internet subscriber information including electronic records. This authorization applies to libraries that offer computers for public use. The range of information available under a National Security Letter is not nearly as broad as what can be obtained under Section 215. Under an NSL, the FBI is not entitled to get the content of records showing what books a patron is reading. But agents do not have to go to a court at all in order to issue an NSL and so if they are only looking for particular kinds of information about customers and patrons, like names, addresses, and billing records, this form of self-help is very convenient. At the time George received his
NSL, the FBI interpreted the statute in question as also covering information about what websites patrons visit, what e-mail addresses they use, and other information about the patrons themselves. (As
chapter 9
will discuss, a 2008 Office of Legal Counsel memo later rejected that interpretation.
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) If Section 215 removed the alarm from the front door, the National Security Letter provision blasted a large hole in the back door.

It turned out that the apparently simple demand for information in the NSL George received would have involved turning over a massive amount of information about Connecticut library patrons. Library Connection is a consortium of twenty-six libraries in the Hartford, Connecticut, area, which was organized to provide a common computer system to control catalog information, patron records, and circulation information for its member libraries. Modern libraries rely on a lot more technology than just paper card catalogs and books. The IP address given in the NSL was a router at one of the libraries, and there was no way to trace the path from a particular router to a specific computer. And so complying with the NSL would involve telling the FBI who was using every computer in the library in question on that day. And because there was no way to determine who had used computers in that library on a particular day five months earlier, “subscriber information of any entity related” to that IP address would have to be construed as a request for information on all the patrons of that library—a very broad dragnet indeed. Approximately 288,000 people held library cards with the Connecticut libraries involved in the consortium; many people without library cards also use the libraries.
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George’s indignant reaction was that he wanted to testify before Congress to “raise a big patriotic American flag of caution about how our civil liberties are being sorely tested by law enforcement abuses of national security letters.” Congress, as he knew, was currently debating whether or not to extend Patriot Act provisions including Section 215, but was being lulled by the misleading reassurance of Attorney General Gonzales that any concern about undue intrusion on libraries was baseless because that specific power was not being used.
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But the absolute gag order under this provision, like the gag order attached to Section 215, commanded him not to tell anyone at all (except perhaps his own “officer, employee or agent”) that he had received an NSL. The gag order was so stark that it did not, on its face, allow him to consult an attorney or go to court to challenge either the constitutionality of the gag order, or the production demand that turned out to be extremely burdensome and perhaps impossible. But George decided that he would not let the threat of the gag order stop him
from consulting a lawyer. In addition to his concern about the gag order, George also thought hard about whether the information sought might be urgently needed in connection with the FBI’s hot pursuit of a dangerous suspect. In considering what to do, he thought it was significant that the NSL he received was dated several months before it was served on him, that it referred to computer use five months earlier, and that several days before serving the NSL, an FBI agent had called to inquire about the correct name of the person who should receive the demand. These circumstances, in combination, made him think that the information sought was not so urgently needed that he could not at least consult a lawyer to help him figure out how to respond. His conclusion that this was not an urgent request was borne out when, months later, the government withdrew the request for information.

The lawyer George consulted had never heard of National Security Letters either. But the lawyer’s assistant did some research, which turned up the story of an Internet service provider known as “John Doe” who, on receiving a National Security Letter consulted the ACLU, went to court, and won his constitutional challenge to the statute’s absolute gag order provisions. Before the 2005 Patriot Act reauthorization hearings, a New York federal court in John Doe’s case had ruled that despite the statute’s absolute terms, the Constitution requires giving NSL recipients a chance to consult a lawyer and to ask a court to relax the demands made of them. The same judge had also ruled that permanent, absolute gag orders violate the First Amendment unless they are actually justified by the circumstances of the individual case.
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George’s attorney told him that the only way to challenge his National Security Letter or his gag order was to follow in John Doe’s footsteps and bring a lawsuit against the Attorney General in federal court. Reluctant to make such a weighty and potentially costly decision by himself, George decided to consult the three other members of the Executive Committee of Library Connection, his organization’s officers: Barbara Bailey (President; Director, Welles-Turner Memorial Library, Glastonbury), Peter Chase (Vice President; Director, Plainville Public Library), and Janet Nocek (Secretary; Library Director, Portland Library). All four officers fully appreciated the importance of antiterrorism investigations—Janet Nocek had a friend who had died on one of the planes that crashed into the World Trade Center—but they agreed that they were defending democracy by insisting that the checks and balances established in the Constitution be observed. So the four decided to engage the ACLU to bring a lawsuit on
Library Connection’s behalf to seek relief from the gag order. (The ACLU became a co-plaintiff because its own lawyers and agents were also gagged from discussing the litigation.) The first stage of the litigation aimed to achieve modest goals: first, to allow the Executive Committee’s actions to be presented to the full Library Connection Board, and second, to allow the four to identify themselves and testify before Congress so that the fact that a demand like this had indeed been made in a library could become part of the national debate surrounding renewal of the Patriot Act. “Everyone has the responsibility,” says George, “to make sure the government plays by the rules.” George and his colleagues did not seek permission to disclose the letter’s actual contents. In deference to the government’s national security concerns, the Library Connection Executive Committee members were willing to keep quiet about the particular information that had been sought. They just wanted to speak about their own experience and to impress upon Congress their view that the FBI should not be allowed to demand information like this without judicial review.

But George and his colleagues were to discover that the gag order’s impact went beyond prohibiting them from testifying before Congress. George prepared an affidavit to submit to the Connecticut federal court in the case of
John Doe v. Gonzales
, explaining what had happened. He was then surprised to learn that he and his three colleagues could not attend the court hearing in their own case because of the risk that they might be identified as the plaintiffs. He had become a genuine “John Doe,” along with his colleagues. So at the attorneys’ request, the court arranged for them to watch the hearing on closed-circuit TV in a locked room in the Hartford Federal Court building, sixty miles from the courthouse in Bridgeport where the case was being argued.
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The documents in the case were initially filed under seal and could not be viewed on the court’s website. On the morning of the hearing, the court permitted a redacted version of the complaint and motion papers to be posted.

The government’s insistence on maximum secrecy was based on the “mosaic” theory, as described in the last chapter.
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Since there is no way to know when a seemingly innocuous piece of information (like a challenge to the scope of statutory gag orders?) might be useful to America’s enemies, the government insisted on keeping as much information as possible under wraps. This is another example of dragnet thinking: if there is a 1 percent chance that revealing information might conceivably do harm to national security in some remote manner, that information should remain secret even though enforcing secrecy necessarily defeats the exercise
of constitutional rights. There were several constitutional rights at odds with the government’s desire to muzzle George and his colleagues. In addition to having a right to freedom of speech under the First Amendment, the librarians also had a right under the First Amendment to petition the government for redress of grievances.
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The public also has an independent First Amendment right of access to judicial proceedings.
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And as the judge who was assigned the case concluded, there was no basis for believing that enemies of the United States would gain any advantage by learning the identity of this “John Doe.”

Federal judge Janet Hall, who was assigned to hear the case, had worked for the Department of Justice and the U.S. Attorney’s Office in Virginia, and was in private law practice when President Bill Clinton nominated her to the bench in 1997. Hall asked the government what reasons it had for keeping the four John Does from describing their NSL experience to Congress or their colleagues. The government initially told Judge Hall that the relevant information was classified and could not even be revealed to her, but Hall pointed out that in her previous work, she had already been granted the highest level of security clearance. As in the
MCA
case, the government insisted on providing its response to Judge Hall ex parte, in secret. The plaintiffs’ lawyers, as in the
MCA
case, were not allowed to see the government’s evidence and therefore were hard-pressed to reply. Nevertheless, after reviewing the secret evidence, Judge Hall found that the First Amendment gave the librarians a right to speak and that the government had not shown a sufficiently compelling reason to keep the librarians totally gagged. On September 9, she ordered that the government modify the gag order to permit the Library Connection Four to identify themselves and therefore to offer personal testimony to Congress: “Doe’s speech would be made more powerful by its ability to put a ‘face’ on the service of the NSL… Doe’s statements as a known recipient of a[n] NSL would have a different impact on the public debate than the same statements by a speaker who is not identified as a recipient.”
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