Taking Liberties: The War on Terror and the Erosion of American Democracy (27 page)

But the government was still determined to prevent the librarians from talking to Congress. At the government’s request, Judge Hall stayed her order until September 20, meaning that it would not take effect until after the government had a chance to appeal her decision. The government did appeal and on September 20, the Court of Appeals granted the government a continuing stay. This meant that the librarians would not be able to testify until after the appeal itself was over—if they won. The Patriot Act hearings were expected to conclude by the end of the year, as the
provisions at issue were slated to expire at the end of December, and so the librarians and their lawyers were caught in a real-life version of
Beat the Clock
.

Throughout the months since July, the rigors of secrecy had been taking their toll. George and his colleagues were very troubled by the fact that they could not even tell the members of their Board of Directors that they were engaging in this now highly public litigation. That felt to them like an involuntary violation of their fiduciary duty. They could not advise other libraries to prepare for possible receipt of a National Security Letter by establishing policies or procedures to follow. Peter Chase, who was Chairman of the Intellectual Freedom Committee for the Connecticut Library Association and served as a public spokesperson on the subject of the Patriot Act, began to refuse invitations to speak on the topic of surveillance in libraries. The League of Women Voters in Hartford invited Peter and United States Attorney Kevin O’Connor to debate each other on the question of applying the Patriot Act to libraries, reprising a debate the two men had held in March. Peter felt he had to decline the invitation because he now knew too much about the subject and feared that he might slip and divulge something about his personal experience; O’Connor, who was representing the government in the Library Connection case, accepted. Peter says he found it “galling” that O’Connor was traveling around the state “telling people that their library records were safe, while at the same time he was enforcing a gag order preventing me from telling people that their library records were not safe.”

Barbara Bailey says, “It was difficult to sit among colleagues and listen to them discuss ‘John Doe.’ I had to work hard to keep my mouth shut or I would risk jail time.” The gag order prevented the four from accepting recognition for their courageous stance, including the 2005 Robert Downs Intellectual Freedom Award presented to “John Doe” by the University of Illinois Graduate School of Library and Information Science. When colleagues talked about the litigation, the four had to keep poker faces; when colleagues were asked to rise and applaud “John Doe” for standing up for principle, they had to stand and applaud themselves appreciatively, for fear of discovery if they acted any differently from people who did not know who John Doe was. More difficult than professional forbearance was maintaining silence with their friends and families. Although no one was supposed to know their identities, reporters speculated and called Library Connection members to request interviews. Peter Chase’s son asked at one point, “Dad, is the FBI after you?” To his horror, Peter realized that
he was not allowed to reassure his son by answering that question honestly. George Christian’s sixteen-year-old son, aware of law enforcement contacts with his father, was afraid that his father would be arrested. To comply with the gag order, George had to be evasive with both his son and his wife, an impossible situation for a man who prides himself on being open and honest. No wonder no NSL recipient beyond one other John Doe had ever challenged the government or the gag order.

On September 21, the day after the Court of Appeals had extended the gag order, a
New York Times
article outed George and his colleagues. Alison Leigh Cowan reported that a “close reading” of the court record revealed that the “John Doe” in the Connecticut case was Library Connection of Connecticut. The story bore the ironic title, “Librarians Must Stay Silent in Patriot Act Suit, Court Says.”
¹³
Cowan had solved the mystery of John Doe’s identity because the court’s own website inadvertently referred to the case in one spot as “
Library Connection Inc. v. Attorney General
” instead of “
John Doe v. Attorney General
.” In addition, some FBI or Justice Department lawyer who had redacted some previously sealed documents before they were posted had failed to omit some telltale facts, including a description of one of the plaintiffs as Chairman of the Intellectual Freedom Committee for the Connecticut Library Association. No one but Peter Chase fit that description.

In light of the
New York Times
report, the ACLU asked to have the stay lifted, given that the entire point of the stay was to prevent anyone from finding out John Doe’s identity. That identity had now been disclosed and the clock on the congressional hearings was running. But the government replaced the sloppily redacted documents on the court’s website with more carefully redacted versions and argued vigorously against vacating the stay, maintaining that the stay had not become moot: “mere publication of an article that purports to identify the NSL recipient does not let the cat out of the bag.”
¹⁴
Government lawyers told the court that people in Connecticut do not read the
New York Times
and that studies show that 58 percent of people do not believe what they read in newspapers anyway. The government required all court documents filed in connection with this motion to be filed under seal, at least initially, and also asked to have the argument held in a closed session,
¹⁵
all to avoid any public discussion of the formerly secret identity of “John Doe.” Bizarrely enough, among the documents that had to be filed under seal was the already published
New York Times
story correctly identifying the Library Connection as John Doe, which had been attached to court papers as an exhibit. Phrases like “the cat is out of the
bag” or “the genie is out of the bottle” were censored, as were direct quotations from Supreme Court cases on the right to disclose information that has already been revealed to the public.

One appellate judge, musing on these events in a later opinion, quoted Benjamin Franklin’s
Poor Richard’s Almanack
: “Three may keep a secret if two of them are dead.”
¹⁶

The Court of Appeals refused to vacate the stay. On October 3, the lawyers asked Circuit Justice Ruth Bader Ginsburg to lift the stay, noting that the Patriot Act debates were expected to conclude in the very near future. Although commenting on the irony that the gag was continuing after the cat was in fact out of the bag, Justice Ginsburg declined to vacate the stay, finding that the circumstances were not extraordinary enough to warrant interfering with a pending appellate process that she hoped would be concluded with dispatch. So the Library Connection Four remained mute.
¹⁷

The Court of Appeals heard argument on the government’s appeal on November 2, 2005,
¹⁸
as the Patriot Act debates continued. On November 6,
Washington Post
reporter Barton Gellman told the story the librarians couldn’t tell, beginning his front-page exposé on the proliferation of use of NSLs:

The FBI came calling in Windsor, Conn., this summer with a document marked for delivery by hand. On Matianuk Avenue, across from the tennis courts, two special agents found their man. They gave George Christian the letter, which warned him to tell no one, ever, what it said.
¹⁹

Gellman reported that George Christian was far from alone: over 30,000 NSLs were being served each year.
²⁰
Congress had not been engaging in much oversight of NSLs at the time and so might not have known what the public was now learning. Thanks to the chain of events set in motion by Gellman’s article and the John Doe litigation, we now have official figures. In the year 2000, the FBI had issued 8,500 NSL requests. (Each NSL can contain multiple requests.) After the Patriot Act’s expansion, the numbers jumped to 39,346 requests in 2003; 56,507 in 2004; 47,221 in 2005; and 49,425 in 2006.
²¹
George Christian’s experience had been repeated hundreds of thousands of times but, so far as we can tell, he was only the second person to question why he was so utterly gagged.

On March 9, 2006, after protracted debate, a filibuster, and a lot of ungainly procedural maneuvering, Congress voted to renew the Patriot Act, including Section 215 and the National Security Letter provision, without having had the benefit of testimony from anyone at Library Connection. The following week, the Court of Appeals asked the parties to file additional papers to explain how the extension of the Patriot Act provision in question, with some modest amendments, affected the litigation. One of the modifications provided a procedure for having an NSL gag order lifted, as will be more fully described in the next chapter. The government lawyers announced that because the new statute allowed for the possibility of a gag order not being absolute and permanent, they would no longer contest the Library Connection members revealing their identity. The government had another belated surprise in store for Library Connection: a resounding “never mind.” In April, the government not only dropped its legal battle to preserve the gag order, but also withdrew its original demand for Connecticut library records. George Christian was off the hook. He did not have to figure out how to comply with the NSL’s difficult—and evidently noncritical—demands. And so the librarians were finally free to speak—six weeks
after
the prolonged and contentious Patriot Act debates had ended. It still took a number of weeks for the necessary court procedures to be completed so the plaintiffs could hold their first press conference.

At that press conference, on May 30, the librarians spoke up at last. Janet Nocek pointed out that “[t]he government’s gag order also kept us from having a free discourse with our elected officials when they needed it most. No one got to hear the real story.” And George Christian said, “The fact that I can speak now is a little like being permitted to call the Fire Department only after a building has burned to the ground.”
²²

On August 2, Justice Ginsburg granted a motion to unseal the Supreme Court’s records in the case, and similar motions unsealed records in the Court of Appeals and District Court. All the documents I describe, once treated as explosive, can now be read on the courts’ or the ACLU’s websites. And starting in June 2006, the Library Connection Four freely accepted awards and speaking engagements, recognizing that they are just about the only people in the country allowed to talk about what it is like to be conscripted by the government to turn over information about one’s customers or patrons, and then gagged. Janet Nocek told an audience of New Jersey librarians that most of the feedback she has received since her identity was revealed has been quite positive—librarians and others thank her for her willingness to uphold American values of free speech and
thought, even at risk of federal prosecution. The only negative commentary she received was one e-mail accusing her of being a “trader” to the United States.
²³
Probably not a message from another librarian.

Other Librarian Tales

How many other librarians have shared George Christian’s experience? We don’t know. The American Library Association, frustrated at the lack of information about the impact of surveillance measures on libraries, administered its own survey in June 2005. One hundred thirty-seven librarians responded that federal, state, or local law enforcement agents had asked them for information about their patrons between October 2001 and June 2005.
²⁴
In light of gag orders, respondents could not be asked for details. And it is possible that, because of gag orders, not all respondents who had received requests for information were willing to say so in response to the questionnaire. Have NSLs been served on librarians under the Obama Administration? We don’t know. But we do know that the law still empowers the FBI to use this method of compelling information in libraries and elsewhere and that Barack Obama’s Justice Department has been arguing for an extension of the NSL’s reach (to be discussed in the next chapter).
²⁵

A few other librarians have been able to tell their stories publicly. Joan Airoldi, director of the library district in Whatcom, Washington, tells of an FBI agent who stopped by the Deming branch of the Whatcom County Library System (in northeastern Washington) to ask for a list of everyone who had borrowed a particular biography of Osama bin Laden. Like George Christian, the Whatcom librarians consulted their attorney. They concluded that the request was probably a fishing expedition and certainly a problem under the First Amendment. It turned out that a library patron had sent the volume in question to the FBI after noticing words handwritten in the margin describing hostility toward America as “a religious duty.” The words were a quotation from a statement bin Laden had made in a news interview. The librarians decided not to turn over the patron records without a subpoena (which is issued by a court, grand jury, or prosecutor, rather than an investigating agency like the FBI).

The FBI returned to the Deming library with a subpoena. (In this case, of course, a National Security Letter would not have been adequate because the FBI was seeking information beyond the bounds of what the NSL statute authorizes—the actual content of library records.) The librarians decided to continue resisting, by asking the court to quash the subpoena
on constitutional grounds if necessary. “Who would check out a biography of bin Laden knowing that this might attract the attention of the FBI?” asked Joan Airoldi. Two weeks later, the FBI withdrew the request. Airoldi recognized that she was fortunate that the FBI had gotten a subpoena rather than proceeding under any of the Patriot Act authorities that have gag orders attached, including Section 215 (under which the FBI would be able to seek the identity of someone who borrowed a specific book). “With a Patriot Act order in hand,” she said in an op-ed in
USA Today
, “I would have been forbidden to disclose even the fact that I had received it and would not have been able to tell this story.”
²⁶