Gagged National-Security-Letter Recipients Find Their Voice

In July 2005, George Christian got a call from an employee he supervised. An FBI agent had called to ask who could receive service of a national security letter addressed to the Library Connection, a nonprofit consortium that provides computer services to twenty-six Connecticut libraries. As executive director, Christian was responsible for the organization’s legal affairs. The FBI was told that the letter should be directed to him.

The following week two FBI agents showed up at Christian’s office in Hartford. He was handed a letter demanding electronic records that would determine who had used a library computer between 4 and 4:45 p.m. on a specific day six months earlier. Christian’s background is in information technology. “I told the agent he was out of luck,” Christian said. “When a computer is turned on, a router assigns it to an IP address, and the routers use address translation to hide the computer behind it—if only to make hacking more difficult.” The specific facts couldn’t be made available unless all the information on every library patron was turned over to the FBI.

Agent Aram Crandall told Christian to pull the information together and comply with the demand stated in the letter. Christian was the victim of a scandal in which hundreds of FBI agents were taking liberties with the civil liberties of hundreds of thousands of American citizens.

The FBI’s abuse of its expanded post 9-11 authority to issue national security letters is one of the Bush administration’s scandals that haven’t quite caught on. The story lacks what journalists call “legs” because there is almost no one to explain what actually happens when an FBI agent carrying a national security letter knocks at your door.

MEET JOHN DOE—George Christian gives the story legs. He was one of five individuals who have refused to comply with a national security letter demand for documents or information: four from the Library Connection and a man known as “John Doe New York,” who also challenged his national security letter. Although the FBI has dropped the demand for information about one of his clients, three years later John Doe New York remains gagged. If he reveals that he received a national security letter, or mentions what the government wanted, he faces a prison term. John Doe New York is not talking. But George Christian is. He beat the odds and the system. He has a lot to say.

While two FBI agents waited in Christian’s office, he read a paragraph of his national security letter, which cited a statute and certified that the information the agent requested was “relevant to an authorized investigation against international terrorism or clandestine intelligence activities, and that such an investigation of a United States person is not conducted solely on the basis of activities protected by the First Amendment to the Constitution of the United States.”

Christian had never heard of a national security letter. By his calendar the date was July 8; the letter was dated May 19. Almost a week had passed since the FBI had called his office. “This didn’t look like the FBI was in hot pursuit of anyone,” Christian said. The letter wasn’t addressed to him, but to the employee the FBI initially contacted. Its third paragraph prohibited the recipient from “disclosing to any person that the FBI has sought or obtained access or information to records under these provisions.”

“I told the agent I didn’t think the statute was constitutional,” he said. “And that I was going to discuss it with my attorney.” Christian had already decided he wasn’t going to comply. He called the Library Connection’s attorney, whose work is focused on keeping non-profits in compliance with federal and state law. Like him, she had never heard of a national security letter. “She had never seen those three words used together like that,” Christian said. She had several law students research national security letters and the statute that authorized them and warned Christian that denying the FBI’s request would entail taking on the Attorney General of the United States. Christian called the consortium’s vice president, Peter Chase, and requested an emergency meeting of the Library Connection’s board.

LIBRARIANS FIGHT BACK—Peter Chase is the librarian from Central Casting. Soft-spoken, dignified and earnest, he is the director of the library in Plainville, CT (pop. 12,000; 90,000 volumes). He is a ferocious defender of the privacy, and what he describes as the “intellectual rights,” of his patrons. Chase never doubted that the Library Connection would refuse to comply with the FBI’s request for records. What his lawyer told him strengthened his resolve.
“Our lawyer told us the targets of national security letters don’t have to be suspected of any criminal activity themselves,” Chase said. “And the FBI doesn’t have to show that this investigation has anything to do with national security.
The librarians, she wrote, had suffered “irreparable harm” to their First Amendment rights. While their case was being tried, the Congress was debating renewal of the Patriot Act, which had drastically lowered the standards for use of national security letters. As national security letter targets, the Connecticut librarians had a First Amendment right to relate their experience to lawmakers. The previous Attorney General, John Ashcroft, had caricatured librarians who voiced their concerns about the Patriot Act as “hysterics” and insisted the act wouldn’t be used to pursue library records. While the renewal of the act was being debated in the fall of 2005 and early 2006, Attorney General Alberto Gonzales was sending his U.S. Attorneys out on tour to promote the Patriot Act. (On one occasion the Connecticut League of Women Voters invited Connecticut U.S. Attorney Kevin O’Connor to defend the act in a public debate with Peter Chase, who was unable to attend and speak because he had been gagged—by U.S. Attorney Kevin O’Connor.)

STATE SECRETS—In the end, Judge Hall’s ruling was struck down. The government filed for an immediate stay and appealed the ruling to the Second Circuit in New York. The librarians were permitted to attend their hearing at the Court of Appeals in New York because there were several courtrooms in the building and a large crowd was expected. They could not, however, identify themselves in any way, walk into the room together, sit together, greet one another, or greet or make eye contact with their lawyers.

“We were still a national security threat,” Chase said. “There were librarians from Connecticut all over the courtroom, and every one of them knew I was John Doe.”

The cat, in fact, was out of the bag—the identities of the two John Doe plaintiffs known because of publication in the New York Times. Even if the government’s lawyers insisted that the line “the cat is out of the bag” be redacted from the motions filed by the ACLU lawyers. Even if the appellate court judges sustained the government’s motions to redact complete pages of the Times articles that the ACLU attorneys had submitted to prove the cat was out of the bag.

Yet the three-judge panel on the Court of Appeals ruled that the gag order would remain in place. And the identities of the Connecticut librarians would remain secret—except, perhaps, to anyone who might have read the New York Times or a half-dozen other news outlets. The ACLU fired off an urgent appeal to the Supreme Court. Justice Ruth Bader Ginsburg refused to lift the gag order.

Then the FBI folded, lifting the gag order and dropping the demand for the Library Connection’s records. “Their timing was sinister,” said Chase. Shortly after President Bush signed the renewed Patriot Act, the John Does of Connecticut were free to call their senators and representatives.

“They also took away our standing,” Chase said. There was nothing to contest.

Anne Beeson said that’s correct, but only in a purely technical sense. They could have continued the fight. But John Doe New York is providing a better vehicle. He’s still in court awaiting a decision on his case. His hearing in New York should be scheduled for sometime before this July.

UNGAGGED AT LAST—Why is this scandal bigger than Al Gonzales? In March the Inspector General at the Justice Department released a report that documents widespread abuse of national security letters by FBI agents, who no longer need approval from Washington to issue them. Between 2003 and 2005 more than 140,000 national security letters were issued to “American persons”—many of the letters being in violation even of the standards that were lowered by the Patriot Act. Americans are unaware when their e-mail or their telephone conversations with their children doing a junior year in Spain are monitored by the National Security Agency. Yet more than 140,000 Americans know they have been handed national security letters by the FBI and told to keep their mouths shut about it.

“There is no oversight!” he said. “When we heard that, we said, no, no, no! We’re not going to do this.”

Congress is paying attention. Senators Patrick Leahy and Russ Feingold have held hearings on national security letters—in the Senate Judiciary Committee, which Leahy chairs, and the Judiciary subcommittee that Feingold chairs. House Judiciary Chair John Conyers and Intelligence Committee Chair Sylvester Reyes are holding similar hearings on the House side. Ungagged, George Christian testified before Senator Feingold’s committee on April 11.

Their lawyer put them in touch with the American Civil Liberties Union. ACLU attorneys Ann Beeson and Jameel Jaffer drove up from New York—they didn’t feel safe discussing the case over the phone. They told no one in their office where they were going, fearing an inadvertent leak that could result in charges being filed against the lawyers and their prospective clients. It wasn’t clear that a recipient of a national security letter could speak with a lawyer.

The ACLU lawyers offered to represent the librarians and bring the ACLU in as a co-plaintiff. The Connecticut librarians became nameless plaintiffs in a John Doe, et al., v. Alberto Gonzaleslawsuit. They argued that the FBI practice of knocking on a citizen’s door and handing him a letter that included a perpetual gag order is a violation of First Amendment free-speech rights.

Their lawyers argued; they themselves could say nothing. As gagged plaintiffs in a federal trial, George Christian, Peter Chase and fellow Library Connection executive board members Barbara Bailey and Janet Nocek stepped into a through-the-looking-glass legal system. They were never bound and gagged in the courtroom, as sixties radical Bobby Seale was when he was tried in 1969 as one of the “Chicago Eight” (which became the Chicago Seven when Seale was jailed for contempt). The Hartford Four were rendered invisible. They watched their district court hearing in a federal courtroom in Bridgeport from a secure room in the federal courthouse in Hartford—on closed-circuit TV, unable to communicate with the judge or their attorneys.

After Justice Department attorneys inadvertently revealed the John Does’ identities by leaving Peter Chase’s name and a specific reference to the Library Connection in court filings and documents posted on the court’s electronic docket, several enterprising journalists followed the trail to Chase. New York Times reporter Allison Leigh Cowan telephoned Chase at his home and opened with an innocuous question about his work as the library association’s intellectual freedom committee chairman. Chase remained on the phone until the reporter asked if he’d seen the hearing in federal court in Bridgeport. The reporter had been in the courtroom and knew who was there. To answer yes, he feared, would identify him and violate the gag order. He hung up, confirming Cowan’s suspicion.

Chase called his ACLU attorneys in New York. They ordered him to leave town for a few days. If the Times revealed his identity, he would be besieged by reporters. And the FBI might react by obtaining his phone records, which would reveal an extended conversation with the Timesreporter, even if Chase didn’t reveal his identity to her. The ACLU attorneys also told Chase they were retaining a criminal-defense lawyer to represent him.

Fortunately, Federal District Judge Janet Hall acted quickly. When the Assistant U.S. Attorney defending the FBI argued that the material supporting the demand for library records was classified, Judge Hall said she held a security clearance. She examined the material in her chambers and decided there was nothing that justified the FBI gagging the librarians. Her preliminary injunction, handed down exactly one month after the ACLU filed suit, pertained only to the gag order, the most urgent part of the suit.