Rest easy. Your metadata is safe, as are the private telephone conversations of foreign leaders (deemed to be friendly to the United States). But you still might one day find yourself on the receiving end of a national security letter.
The Times Peter Baker mentioned national security letters in an article anticipating the national security address President Obama delivered on Friday. Baker quoted from a speech Obama gave when he was defining himself as a presidential candidate in 2007. “That means no more illegal wiretapping of American citizens,” Obama said. “No more national security letters to spy on citizens who are not suspected as a crime.”
|Obama knows the national security letter process. But on Friday he ignored at least one recommendation of the panel he had convened to study national security programs—that NSLs require a warrant from a judge.|
In 2004, while campaigning for Senate, Obama said, “we don’t like federal agents poking around in our libraries.”
Obama’s speech on Friday outlined some modest reforms (which would never have happened without Edward Snowden). But federal agents will continue to poke around in our libraries and American citizens suspected of no crimes will continue to receive national security letters—issued without the consent of a judge.
Here’s what to expect if you are issued a national security letter, which is a secret subpoena demanding information or documents.
You will be visited by an FBI agent with no warrant. She (or he) will hand you the letter, which will include a “non-disclosure order” with which you could be required to comply for as long as you live.
Not your spouse, your brother, your United States Senator, your lawyer, a federal judge, a court clerk can be told. Included in the non-disclosure order is a warning that if you inform anyone of the receipt of the letter, you will be subject to criminal prosecution.
Federal District Judge Victor Marrero challenged the Kafkaesque NSL process in an opinion he wrote in 2007. “The literal terms of the non-disclosure order,” Marrero wrote, “would bar the recipient to file [a challenge] in federal court. To go to court is to break the law. Even if he were to challenge the NSL on his own, the recipient would necessarily have to disclose the fact of the NSL’s issuance to the clerk and the presiding judge, again, in violation of the law.”
In Bill of Wrongs, on which I collaborated with Molly Ivins, I wrote about an NSL case involving a small group of John Doe librarians who sued Bush Attorney General Alberto Gonzales.
In July 2005, three FBI agents walked into the office of the Library Connection, a non-profit collective that does IT work for 28 Connecticut libraries. The agents demanded electronic information that would determine who had used computers in one specific library between 4 and 4:45 p.m. on a specific date six months earlier.
George Christian, the Library Connection’s IT chief who received the letter, broke the law.
He called the collective’s attorney, and informed Library Connection vice president Peter Chase. After meeting with their board, they decided to continue to ignore the gag, break the law, and challenge the NSL in federal court.
Chase, a librarian, is one of the country’s First Amendment/Fourth Amendment heroes.
“They were going after our patrons with a national security letter,” Chase told me after the case concluded. “Our lawyer told us that the targets of national security letters don’t even have to be suspected of any criminal activity themselves. And the FBI doesn’t have to show anyone that this investigation has anything to do with national security.
“There is no oversight. When we heard that we said no, no, no no! We’re not going to do this.”
The trial was bizarre in many ways. Here are only a few.
When attorneys from the ACLU’s national office drove up to Connecticut to meet with the librarians (whom they dared not bring down to New York), the lawyers told no one in their office where they were going. Nor did they tell family members. To do so would have exposed additional parties to prosecution.
The four John Does from the Library Connection (two of them were Jane Does) could not attend their trial because under the law they didn’t exist. (The letters are secret.) So while the hearing was conducted in federal court in Bridgeport, the plaintiffs watched on closed-circuit TV from a secure room in the federal courthouse in Hartford, unable to communicate with the judge or their attorneys.
The plaintiffs had to conceal their role in the lawsuit from their spouses, children, family members, and friends. Even if a family member were to inadvertently learn of the letter, that person would be subject to prosecution.
A New York Times reporter somehow got wind of the story and identified Chase, whom the reporter had seen walk into the federal courtroom by calling to ask if he had attended the hearing. Chase hung up, which the reporter included in a story that ran in the Times. Chase retained a criminal attorney and told his bewildered wife they had to leave town because Labor Day vacation was starting early.
When the ACLU attorneys attached a copy of the Times story to a motion they filed in court, the U.S. attorneys (in a meeting closed to the public and of course the plaintiffs) demanded that the letter had to be redacted. They even insisted the phrase “the cat is out of the bag” be redacted from the Times article, which had already been seen by millions of readers.
And when the ACLU lawyers filed an emergency motion at the Supreme Court, Justice Ruth Bader Ginsburg’s opinion was redacted. ACLU attorney Anne Beeson told me at the time that she had never heard of a redacted Supreme Court opinion.
After nine months of litigation, the FBI rescinded the gag order, thus ending the litigation.
Here’s the kicker. During that nine months, the PATRIOT Act, which covered national security letters, was being debated in Congress where it was up for renewal. The gag order was lifted after President George W. Bush signed the renewed PATRIOT Act, too late for the Connecticut librarians to tell their stories to members of Congress who might have amended the NSL process.
Obama knows the national security letter process. But on Friday he ignored at least one recommendation of the panel he had convened to study national security programs—that NSLs require a warrant from a judge.
In 2011, the FBI issued 16,511 National Security Letters, according to the Electric Privacy Information Center.
Lou Dubose is the editor of The Washington Spectator