Category Archives: Gagging ordinary citizens

National Security Letters: A method used to gag 143,000 Americans

National Security Letters: A method used to gag 143,000 Americans

The following text was copied from History Commons on 10 October 2008 as a contribution to the rule of law.  The original text provides direct links to primary sources.  The original URL is:

A case filed against Attorney General Alberto Gonzales by four plaintiffs from Connecticut’s Library Connection, Inc.—George Christian, Barbara Bailey, Peter Chase, and Janet Nocek—goes to trial in federal district court (see July 13, 2005). The trial is filed as Doe v. Gonzales because the government has filed a gag order against the plaintiffs forbidding them from identifying themselves or discussing the case publicly. The case involves a demand for information from the FBI for information concerning library usage by patrons of a Connecticut library; the four plaintiffs, on behalf of their data management firm Library Connection, have refused.

The case revolves around the use of a National Security Letter (NSL) by the FBI; the plaintiffs, with support from the American Civil Liberties Union, want the NSL voided, the gag order lifted, and such use of NSLs found unconstitutional. Christian and his three colleagues are not allowed to attend the hearings in person because of the possibility that they might be identified as the plaintiffs; they are forced to watch the proceedings on a closed-circuit broadcast from a locked room in the Hartford courthouse.

When the judge in the proceeding asks to review the government’s evidence for keeping the gag rule in place, Justice Department lawyers insist on submitting secret evidence directly to the judge, without providing that evidence to the plaintiff’s lawyers. The judge is not pleased, and rules, as did her predecessor in New York, that a perpetual gag order amounts to prior restraint, and thereby is unconstitutional. She adds that her review of the secret evidence gives no national security rationale for keeping the plaintiffs gagged. The Justice Department immediately appeals the ruling, and the plaintiffs stay silent and gagged.

While the four plaintiffs remain silent about the NSL and the court case, the Justice Department’s primary lawyer, Kevin O’Conner, does not: O’Conner has frequently debated one of the plaintiffs, Chase, about the Patriot Act, and though Chase is now required to remain silent, O’Conner continues to make frequent public appearances touting the Patriot Act.

Christian later says, in 2007 testimony before the Senate Judiciary Committee (see April 11, 2007), that the continuing gag order causes the four “John Does” considerable professional and personal distress, especially after the national media begins reporting the story. The media eventually learns, through the careless redaction of information by government lawyers, of Chase’s identity as one of the four plaintiffs, and reveals that Library Connection is the firm involved in the lawsuit. Christian’s name comes to light shortly thereafter. The attorneys warn Christian and the others that even though their identities and their firm have been revealed, they still cannot comment at all on the case. Christian, for one, wants to testify before Congress in regards to the upcoming reauthorization of the Patriot Act (see March 9, 2006), but cannot. The four plaintiffs quickly become known in the media as the “Connecticut John Does” or the “Connecticut Four.”

Appeals Court – In November 2005, a New York court of appeals hears the case. Christian and his colleagues are allowed to be present at the case this time, but are required to conceal their identities by entering and leaving the court building separately, are not allowed to sit together, and are not allowed to confer with, or even make eye contact with, each other or their attorneys.

The Justice Department lawyers argue that even revealing themselves as recipients of a NSL would violate national security, an argument refuted by submission of the raft of news articles identifying Christian, Chase, and Library Connection. The government argues that those news reports don’t matter because no one in Connecticut reads the primary newspaper carrying the story, the New York Times, and that surveys prove that most people don’t believe what they read in the news anyway.

The Justice Department also tries to get the news articles to be kept under seal in court papers. Christian characterizes the entire proceeding as “absurd.” The court refuses to admit the plaintiff’s claim that 48 states, including Connecticut, have laws protecting the privacy of library patrons, but does admit into evidence the claims by Gonzales that there is no statutory justification for claims of privacy. In an attempt to get the gag order lifted before the Patriot Act reauthorization, the plaintiff’s attorneys make an emergency appeal directly to the Supreme Court, but are rebuffed. [Senate Judiciary Committee, 4/11/2007]

In June 2006, Nocek tells a reporter, “Imagine the government came to you with an order demanding that you compromise your professional and personal principles. Imagine then being permanently gagged from speaking to your friends, your family or your colleagues about this wrenching experience.… Under the Patriot Act, the FBI demanded Internet and library records without showing any evidence or suspicion of wrongdoing to a court of law. We were barred from speaking to anyone about the matter and we were even taking a risk by consulting with lawyers.” [Interview: George Christian, 6/2/2006]

Gag Order Lifted, Case Dropped – Weeks after President Bush signs into law the Patriot Act reauthorization (see March 9, 2006), the FBI voluntarily lifts the gag order without waiting for a court order. The agency then tries to get the original ruling against the gag order vacated, an attempt that the appeals court refuses.

The appellate judges are clearly disturbed by the breadth of the NSL gag provisions; one appellate judge writes, “A ban on speech and a shroud of secrecy in perpetuity are antithetical to democratic concepts and do not fit comfortably with the fundamental rights guaranteed American citizens… Unending secrecy of actions taken by government officials may also serve as a cover for possible official misconduct and/or incompetence.”

The appeals court refers the case back to district court, allowing the original opinion to stand. Weeks later, the FBI withdraws its NSL, saying that it no longer needs the information it originally requested. Christian later testifies, “In doing so, they removed the Patriot Act from the danger of court review.” Christian later says that he believes the entire procedure was managed as an attempt to prevent the case from becoming public knowledge before Congress could vote on the reauthorization of the Patriot Act. [Senate Judiciary Committee, 4/11/2007]

April 11, 2007: ’Connecticut Four’ Plaintiff Testifies to Senate

George Christian, a Connecticut librarian and data manager who fought a National Security Letter from the FBI demanding information about his library’s patrons (see July 13, 2005 and August 2005-May 2006), testifies before the Senate Judiciary Committee.

Christian, who along with his three fellow plaintiffs, has repeatedly spoken about what he considers the Justice Department’s egregrous abuse of power and its invasion of privacy, and his opposition to the USA Patriot Act, which has given the FBI the ability to not only demand private information from libraries about their patrons, but require those librarians to keep quiet about the request.

Though the court battle restored Christian’s ability to speak publicly about his encounter with the FBI, he testifies, “We feel an obligation to the tens of thousands of others who received National Security Letters and now will live under a gag order for the rest of their lives.”

He tells the committee, “Our saga should 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. The questions raised vindicate the concerns that the library community and others have had for over five years about the broad powers expanded under the USA Patriot Act.… We believe changes can be made that conform to the rule of law, do not sacrifice law enforcement’s abilities to pursue terrorists ,yet maintain civil liberties guaranteed by the US Constitution.”
Libraries “should remain pillars of democracy, institutions where citizens could come to explore their concerns, confident that they could find information on all sides of controversial issues and confident that their explorations would remain personal and private.”

He quotes one of his fellow plaintiffs: “[S]pying on people in the library is like spying on them in the voting booth.” Christian also says that while many believe that library records are now protected by the revised Patriot Act, in fact, they are not. He says that “a loophole inserted into the wording allows the FBI to use a national security letter to obtain library records anyway.”
He notes that FBI director Robert Mueller has admitted to the Senate Judiciary Committee that the new language “did not actually change the law.” Similarly, the revised Patriot Act still gives the government the power to impose near-unlimited gag orders on NSL recipients—though the new law seems to give recipients the ability to challenge such gag orders, the law says that if the government declares that lifting such a gag order would “harm national security,” the court must accept that assertion and refuse to lift the order. “Hence, there is no prior judicial review to approve an NSL and, with rare exception, no legal way to challenge an NSL after the fact,”

Christian testifies. “It is the secrecy surrounding the issuance of NSLs that permits their misuse. Because of the fact that all recipients of NSLs are perpetually gagged, no one knew the FBI was issuing so many. No one knew there was no public examination of the practice. No one could ask if over 143,000 National Security Letters in two years are necessary.… Secrecy that prevents oversight and public debate is a danger to a free and open society.” [Senate Judiciary Committee, 4/11/2007]

My National Security Letter Gag Order

My National Security Letter Gag Order

Friday, March 23, 2007; Page A17

It is the policy of The Washington Post not to publish anonymous pieces. In this case, an exception has been made because the author — who would have preferred to be named — is legally prohibited from disclosing his or her identity in connection with receipt of a national security letter. The Post confirmed the legitimacy of this submission by verifying it with the author's attorney and by reviewing publicly available court documents.

The Justice Department's inspector general revealed on March 9 that the FBI has been systematically abusing one of the most controversial provisions of the USA Patriot Act: the expanded power to issue "national security letters." It no doubt surprised most Americans to learn that between 2003 and 2005 the FBI issued more than 140,000 specific demands under this provision — demands issued without a showing of probable cause or prior judicial approval — to obtain potentially sensitive information about U.S. citizens and residents. It did not, however, come as any surprise to me.

Three years ago, I received a national security letter (NSL) in my capacity as the president of a small Internet access and consulting business. The letter ordered me to provide sensitive information about one of my clients. There was no indication that a judge had reviewed or approved the letter, and it turned out that none had. The letter came with a gag provision that prohibited me from telling anyone, including my client, that the FBI was seeking this information. Based on the context of the demand — a context that the FBI still won't let me discuss publicly — I suspected that the FBI was abusing its power and that the letter sought information to which the FBI was not entitled.

Rather than turn over the information, I contacted lawyers at the American Civil Liberties Union, and in April 2004 I filed a lawsuit challenging the constitutionality of the NSL power. I never released the information the FBI sought, and last November the FBI decided that it no longer needs the information anyway. But the FBI still hasn't abandoned the gag order that prevents me from disclosing my experience and concerns with the law or the national security letter that was served on my company. In fact, the government will return to court in the next few weeks to defend the gag orders that are imposed on recipients of these letters.

Living under the gag order has been stressful and surreal. Under the threat of criminal prosecution, I must hide all aspects of my involvement in the case — including the mere fact that I received an NSL — from my colleagues, my family and my friends. When I meet with my attorneys I cannot tell my girlfriend where I am going or where I have been. I hide any papers related to the case in a place where she will not look. When clients and friends ask me whether I am the one challenging the constitutionality of the NSL statute, I have no choice but to look them in the eye and lie.

I resent being conscripted as a secret informer for the government and being made to mislead those who are close to me, especially because I have doubts about the legitimacy of the underlying investigation.

The inspector general's report makes clear that NSL gag orders have had even more pernicious effects. Without the gag orders issued on recipients of the letters, it is doubtful that the FBI would have been able to abuse the NSL power the way that it did. Some recipients would have spoken out about perceived abuses, and the FBI's actions would have been subject to some degree of public scrutiny. To be sure, not all recipients would have spoken out; the inspector general's report suggests that large telecom companies have been all too willing to share sensitive data with the agency — in at least one case, a telecom company gave the FBI even more information than it asked for. But some recipients would have called attention to abuses, and some abuse would have been deterred.

I found it particularly difficult to be silent about my concerns while Congress was debating the reauthorization of the Patriot Act in 2005 and early 2006. If I hadn't been under a gag order, I would have contacted members of Congress to discuss my experiences and to advocate changes in the law. The inspector general's report confirms that Congress lacked a complete picture of the problem during a critical time: Even though the NSL statute requires the director of the FBI to fully inform members of the House and Senate about all requests issued under the statute, the FBI significantly underrepresented the number of NSL requests in 2003, 2004 and 2005, according to the report.

I recognize that there may sometimes be a need for secrecy in certain national security investigations. But I've now been under a broad gag order for three years, and other NSL recipients have been silenced for even longer. At some point — a point we passed long ago — the secrecy itself becomes a threat to our democracy. In the wake of the recent revelations, I believe more strongly than ever that the secrecy surrounding the government's use of the national security letters power is unwarranted and dangerous. I hope that Congress will at last recognize the same thing.

The unexplained loss of TWA Flight 800

"The day after Flight 800 was shot down, the Justice Department, helped by 1,000 FBI agents, began the process of converting hundreds of witnesses into the first American "untouchable cast"… When the Justice Department illegally ordered the NTSB crash investigators to have no contact with witnesses or their statements, and the NTSB complied, the investigation was over, the cover-up and Misprision of Felony Homicide had begun."

From: Cmdr. William S. Donaldson, III – USN, Ret.
Aviation Mishap Analyst
P.O. Box 90, Clements, Maryland 20624
Web site:
April 5, 1999

To: Mr. Philip M. Condit
The Boeing Company
P.O. Box 3707, Mail Code 10-10
Seattle, WA 98124-2207

To: Mr. Gerald L. Gitner
Trans World Airlines
One City Center
515 North Sixth St.
St. Louis, MO 63101

Re: The unexplained loss of TWA Flight 800


Over the last four months our investigation into the loss of TWA Flight 800 has produced information far surpassing that contained in our July 20, 1998 Interim Report to Congress. We can now prove, before a jury or other independent fact-finding body, that the aircraft was shot down. We can also explain why the Administration covered it up and expose some of the methods they employed to do so.

Your corporations are being scapegoated and defrauded by Administration officials because, had the truth about this incident been reported before November of 1996, it could have derailed the reelection of Clinton/Gore. Exposed now, it could send guilty parties to jail for Misprision of Felony Homicide.

We can provide your attorney’s with witnesses, documents, or reference material that will support the following text:

White House knowledge of a threat prior to the loss of TWA Flight 800

   1. The Administration knew that in 1996, surrogates from rogue states had access to MANPADS (Man Portable Air Defense Systems) or shoulder-fired missiles in mid-eastern weapons bazaars. $5,000 would acquire the least capable model, the Russian SA-7. $50,000 would buy the most capable, the Chinese Vanguard, a deadly new missile upgraded from US Stinger technology transferred to the Chinese in the early 90’s. Superior to the Stinger, this missile has a much longer range. The Administration also knew Iran had a limited number of US Stinger missiles in inventory.

   2.   The Administration was aware that, worldwide, MANPADS missiles had already claimed 26 civil transport aircraft and was only a matter of time before a U.S. Flag carrier would be targeted and hit. They knew the Administration had dodged a bullet in 1994 when Maryland State Police found a fully armed French Mistral MANPADS missile ready to fire on its tripod directly under a busy northeastern air route.

   3.   In response to sanctions unilaterally levied against Iran by Mr. Clinton in 1995, Iranian surrogate’s car bombed US troops in Riyadh, Saudi Arabia and later smuggled MANPADS missiles into the US from across the Canadian border. Iranian officials warned the Administration that they considered enactment of the Iran/Libya Sanctions Act tantamount to an act of war!

   4.   When Mr. Clinton signed the Iran, Libya Sanctions Act of 1996, a decision was made by the Iranian Supreme Council to approve attacks on major American targets. Terrorist surrogate groups from nine countries were summoned to Tehran to meet with Iranian officials in June of 1996. Later that month, a huge truck bomb was deployed against the US Air Force barracks complex at Khobar Towers in Saudi Arabia. Three weeks later, TWA Flight 800 was shot down only hours after an explicit warning of an attack was received in London and Washington that taunted the President.

   5.   The White House, the CIA and the FBI were aware of the threat and they knew preventing that attack was their primary responsibility.

   6.   We can show the Administration anticipated incorrectly that, if the missiles were used, they would be targeted against Olympic air traffic landing or taking off in the Atlanta area.

   7.   We can provide testimony that immediately after Flight 800 was shot down, Mr. Clinton called an FBI command post supporting the Olympics and informed them Flight 800 was downed with shoulder-fired missiles.

   8.   The White House, the CIA and the FBI political leadership have waged an unrelenting disinformation campaign from the onset. This has ranged from the White House spokesman stating, "Anyone in government that says this was a missile only has half a brain", and to the CIA cartoon that libeled hundreds of eyewitnesses.


Witnesses or "Untouchables"?

   1. The day after Flight 800 was shot down, the Justice Department, helped by 1,000 FBI agents, began the process of converting hundreds of witnesses into the first American "untouchable cast". The political leadership of the NTSB aborted its mission in one surrender of its responsibilities after another. When the Justice Department illegally ordered the NTSB crash investigators to have no contact with witnesses or their statements, and the NTSB complied, the investigation was over, the cover-up and Misprision of Felony Homicide had begun.

   2.   At the NTSB Public Hearing in December of 1997, the word "witnesses" was not even mentioned. Before and since, they have been ridiculed, slandered and liabled in official videotapes and statements made by government spokesmen.

   3.   On March 15, 1999 the derailment of the Spirit of New Orleans after she hit a steel truck at a railroad crossing in Bourbonnaise IL, prompted a media wide call for witnesses by NTSB officials. It seems a witness was needed to prove the truck had driven around the safety gate. Apparently, investigations are much simpler and witnesses more creditable for the NTSB when there is no White House interest.

   4.   We have access to 107 witnesses on 4 aircraft, 19 boats, and 31 locations ashore. They were located in a 360

Gag orders extended; library consortium must remain silent

Gag orders extended; library consortium must remain silent Vol. 6, No. 20


The U.S. Court of Appeals extended a gag order on a library consortium that received a National Security Letter (NSL) while it considers a lower court ruling that the organization has a First Amendment right to fully participate in the discussion surrounding the USA PATRIOT Act. The gag order is preventing the NSL recipient, an unidentified member of the American Library Association, from discussing its experience openly and participating in the broader debate about the controversial legislation.

The lawsuit specifically challenges the NSL provision of the PATRIOT Act that allows the FBI to demand a range of records without any judicial oversight. The NSL gag order prevents the recipient from speaking out about personal experiences with the law. The ACLU sought an emergency court order to lift the gag order, so the client could participate in meaningful discussions of the PATRIOT Act with Congress, the press, and the public. The government argued that the gag order blocked the release of the client’s identity, not his ability to speak about the law itself, and that revealing the client’s identity could jeopardize a federal investigation into terrorism and spying. U.S. District Court Judge Janet Hall ruled the gag order caused immediate and irreparable harm in preventing the group from revealing the fact that it received the National Security Letter. Judge Hall found that the specific group having received an NSL letter is relevant to the national debate about the PATRIOT Act and that its speech as a recipient would be viewed differently than the speech of a non-recipient. The ruling concluded the act did infringe upon the plaintiff’s speech rights.

The American Civil Liberties Union (ACLU), who is also a plaintiff in the case, representing "John Doe," filed the lawsuit on August 9 against the U.S. Department of Justice. The case was originallyunder seal in U.S. District Court in Bridgeport, Connecticut. The U.S. Court of Appeals set an expedited schedule for appeal, bearing in mind that Congress is set to take up final discussion of PATRIOT Act reauthorization in the next few weeks.

Unconstitutional National Security Letters

The Patriot Act authorized the Government to use so-called "National Security Letters" (NSL’s) to seize information from businesses and others with no judicial approval.  Those who were served NSL’s were not allowed to reveal to anybody, not even to their lawyers, that they had received such letters.  These abusive legal powers were determined as unconstitutional by a court on September 28, 2004. However, the Government still possesses such discretionary powers if it can connect its demand for information to "suspected foreign ties".

Unconstitutional National Security Letters
Gagging Methods

Annex from the Testimony at an Oversight Hearing on sections 206 and 215 of the USA PATRIOT Act of 2001 Before the Subcommittee on Crime, Terrorism and Homeland Security of the House Judiciary Committee, by the American Civil Liberties Union (ACLU), April 28, 2005,
submitted by Gregory T.  Nojeim and Timothy H. Edgar.

Section 505 of the Patriot Act expanded the government’s authority to use National Security Letters (NSL?s) to seize information from businesses and others, with no judicial approval. Prior to the Patriot Act, the government could use NSL?s to obtain records about alleged terrorists or spies ? people who were thought to be “foreign powers? or their agents. Financial, travel and certain Internet Service Provider (ISP) records are accessible under the NSL authority. Section 505 changed the law to allow the use of NSL?s to obtain such records about anyone without the limitation that they be agents of foreign powers. In the Intelligence Authorization Act of 2004.  Congress further expanded the NSL letter authority to permit seizure of casino and other records.

On a date that the government maintains must be kept secret for reasons of national FBI served an NSL on an ISP the identity of which the government also claims secret for reasons of national security. Through its NSL authority at 18 U.S.C. government can seek certain sensitive customer records from ISPs ? including may be protected by the First Amendment ? but the ISP can never reveal that with an NSL, and nothing in the statute suggests that the NSL can be challenged behalf of the ISP and itself, the ACLU challenged the statute as amended by violation of the First and Fourth Amendments because it does not impose adequate the FBI’s authority to force disclosure of sensitive and constitutionally protected because its gag provision prohibits anyone who receives an NSL from disclosing and to any person even the mere fact that the FBI has sought information.

On September 28, 2004, Judge Victor landmark decision striking down as unconstitutional court struck down the entire statute as rendering any use of the statute an abuse hundreds of such uses (1). It found that NSL?s that coerced immediate compliance opportunity to consult with counsel:

The form language of the NSL served upon [plaintiff ISP] Doe, preceded by an FBI phone call, directed him to personally provide the information to the FBI, prohibited him, his officers, agents and employees from disclosing the existence of the NSL to anyone, and made no mention of the availability of judicial review to quash or otherwise modify the NSL or the secrecy mandated by the letter. Nor did the FBI inform Doe personally that such judicial review of the issuance of the NSL or the secrecy attaching to it was available. The court concludes that, when combined, these provisions and practices essentially force the reasonable NSL recipient to immediately comply with the request.

In finding the statute unconstitutional under the Fourth Amendment, Judge Marrero referred repeatedly to the amendments made by Section 505. He noted as an example of the kind of abuse now authorized by the statute that it could be used to issue a NSL to obtain the name of a person who has posted a blog critical of the government, or to obtain a list of the people who have email accounts with a given political organization. The government could not have obtained this information with an NSL prior to the Patriot Act amendment in Section 505, unless the blogger or the people with such accounts were thought to be foreign powers or agents of foreign powers. The court also cited Patriot Act Section 505 as a reason it struck down the statute on First Amendment grounds. The court determined that the tie to foreign powers ? eliminated by Section 505 ? “limits the potential abuse” of the statute and distinguishes it from other intelligence search provisions that retain the requirement of such a tie and include a statutory gag provision.

Because of the gag in 18 U.S.C. Section 2709(c), the government obtained a sealing order it has consistently used to suppress wholly innocuous information in the litigation. Until the court struck down the statute, the government prevented the ACLU from disclosing that it represented someone that had been served with an NSL, and from even acknowledging that the government had used a statutory power. The government has demanded that the ACLU redact a sentence that described its anonymous client’s business as "provid[ing] clients with the ability to access the Internet.” Ironically, the government even insisted that the ACLU black out a direct quote from a Supreme Court case in an ACLU brief: “The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect ‘domestic security.’ Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent.”

The gag in Section 2709 would effectively prevent an ISP (or its lawyers) from disclosing other abuses of Section 2709. For example, if the government was targeting someone because of their First Amendment activity, or if the ISP was being forced to turn over First Amendment protected information about associational activities, the gag would bar disclosure of this abuse.

(1) Doe v. Ashcroft, (04 Civ. 2614, S.D.N.Y. Sept. 28, 2004), at 63-64. The court concluded that hundreds of NSL?s had been requested by the FBI from October, 2001 through January, 2003, and hundreds must have been issued during the life of the statute. The government takes the position that even the number of NSL?s it issues cannot be disclosed for reasons of national security, though it has disclosed publicly to Congress a number of such uses. See, e.g. “H.R. 3179, The “Anti-Terrorism Intelligence Tools Improvement Act of 2003,” Hearings Before the Subcomm. on Crime, Terrorism, and Homeland Security of the House Comm. on the Judiciary, 108th Cong. (2004) (statement of Thomas J. Harrington, Deputy Assistant Director of the FBI Counterterrorism Division).

Bush wins deal on anti-terror law

Bush wins deal on anti-terror law

Key US senators have agreed to back a controversial anti-terror law which the Bush administration has spent months struggling to have renewed.

BBC, Friday, 10 February 2006

 The Patriot Act gave the government new powers to investigate terror suspects after the 11 September 2001 attacks.

Civil libertarians in both parties have objected to some measures, which were due to expire at the end of 2005 and had been only temporarily extended.

The White House has now agreed to changes making renewal almost certain.

President Bush on Thursday outlined details of what he called a terrorist plot to attack Los Angeles, which he said had been derailed by international law enforcement in 2002.

Chance to challenge

The deal on the Patriot Act reportedly includes limiting the government’s power to demand that libraries hand over information about what books people have borrowed.

It also alters the conditions of the National Security Letter, a type of order for a person to appear in secret court.

The Patriot Act had required people who received a National Security Letter to tell the FBI the identity of their lawyers – a condition which will be dropped.

The deal also gives recipients of a National Security Letter the right to challenge the automatic "gag order" which prevents them from saying they have received one.

They will only be able to challenge the gag a year after receiving the subpoena, a compromise that Sen John Sununu said was an improvement over the original law.

"You now have the process to challenge the gag order. That didn’t exist before," the Washington Post quoted the New Hampshire Republican as saying.

Mr Sununu was one of a small number of Republicans who had joined with key Democrats in the fight against making 16 controversial provisions of the Patriot Act permanent.

They had been due to expire at the end of 2005 but got a temporary extension to give lawmakers more time to debate them.

Divided Democrats

The changes have won over some key Democrats, including Diane Feinstein and Richard Durbin, the number-two Democratic leader in the Senate.

Senate minority leader Harry Reid also signalled support, saying the deal "appeared to be a step in the right direction".

Some Democrats continue to oppose the amended legislation, such as Russell Feingold of Wisconsin.

"I am gravely disappointed in this so-called deal," he said.

He said it did not fix what he described as major problems.

"We’ve come too far and fought too hard to agree to reauthorise the Patriot Act without fixing those problems."

When the act does finally get voted through Congress, President Bush will be mightily relieved, the BBC’s Adam Brookes in Washington says.


No date has been set for a Senate vote on the issue.



Expansion of ‘National Security Letters’ Gives Unaccountable Power to FBI

Expansion of "National Security Letters" Gives Unaccountable Power to FBI 


by Kim Zetter
First published January 6, 2004 by


While the nation was distracted last month by images of Saddam Hussein’s spider hole and dental exam, President George W. Bush quietly signed into law a new bill that gives the FBI increased surveillance powers and dramatically expands the reach of the USA Patriot Act.


The Intelligence Authorization Act for Fiscal Year 2004 grants the FBI unprecedented power to obtain records from financial institutions without requiring permission from a judge.


Under the law, the FBI does not need to seek a court order to access such records, nor does it need to prove just cause.


Previously, under the Patriot Act, the FBI had to submit subpoena requests to a federal judge. Intelligence agencies and the Treasury Department, however, could obtain some financial data from banks, credit unions and other financial institutions without a court order or grand jury subpoena if they had the approval of a senior government official.


The new law (see Section 374 of the act), however, lets the FBI acquire these records through an administrative procedure whereby an FBI field agent simply drafts a so-called national security letter stating the information is relevant to a national security investigation.


And the law broadens the definition of "financial institution" to include such businesses as insurance companies, travel agencies, real estate agents, stockbrokers, the U.S. Postal Service and even jewelry stores, casinos and car dealerships.


The law also prohibits subpoenaed businesses from revealing to anyone, including customers who may be under investigation, that the government has requested records of their transactions.


Bush signed the bill on Dec. 13, a Saturday, which was the same day the U.S. military captured Saddam Hussein.


Some columnists and bloggers have accused the president of signing the legislation on a weekend, when news organizations traditionally operate with a reduced staff, to avoid public scrutiny and criticism. Any attention that might have been given the bill, they say, was supplanted by a White House announcement the next day about Hussein’s capture.


James Dempsey, executive director of the Center for Democracy & Technology, didn’t see any significance to the timing of Bush’s signing. The 2004 fiscal year began Oct. 1 and the Senate passed the bill in November. He said there was pressure to pass the legislation to free up intelligence spending.


However, Dempsey called the inclusion of the financial provision "an intentional end-run" by the administration to expand the administration’s power without proper review.


Critics like Dempsey say the government is trying to pass legislation that was shot down prior to the U.S. invasion of Iraq, when the Bush administration drafted a bill to expand the powers of the Patriot Act.


The so-called Patriot Act II was discovered by the Center for Public Integrity last year, which exposed the draft legislation and initiated a public outcry that forced the government to back down on its plans.


But critics say the government didn’t abandon its goals after the uproar; it simply extracted the most controversial provisions from Patriot Act II and slipped them surreptitiously into other bills, such as the Intelligence Authorization Act, to avoid raising alarm.


Dempsey said the Intelligence Authorization Act is a favorite vehicle of politicians for expanding government powers without careful scrutiny. The bill, because of its sensitive nature, is generally drafted in relative secrecy and approved without extensive debate because it is viewed as a "must-pass" piece of legislation. The act provides funding for intelligence agencies.


"It’s hard for the average member to vote against it," said Dempsey, "so it makes the perfect vehicle for getting what you want without too much fuss."


The provision granting increased power was little more than a single line of legislation. But Dempsey said it was written in such a cryptic manner that no one noticed its significance until it was too late.


"We were the first to notice it outside of Congress," he said, "but we only noticed it in September after it had already passed in the House."


Rep. Porter Goss (R-Florida), chairman of the House Intelligence Committee that reviewed the bill, introduced the legislation into the House last year on June 11, where it passed two weeks later by a vote of 264-163. The Senate passed the legislation with a voice vote in November, which means there is no record of how individual senators voted or the number who opposed or supported it.


Goss’s staff said he was out of the country and unavailable for comment. But Goss told the House last year that he believed the financial institution provision in the bill brought the intelligence community up to date with the reality of the financial industry.


"This bill will allow those tracking terrorists and spies to ‘follow the money’ more effectively and thereby protect the people of the United States more effectively," he said.


But Rep. Betty McCollum (D-Minnesota), who opposed the legislation, told the House, "It is clear the Republican leadership and the administration would rather expand on the USA Patriot Act through deception and secrecy than debate such provisions in an open forum."


A number of other representatives expressed concern that the financial provision was slipped into the Intelligence Act at the 11th hour with no time for public debate and against objections from members the Senate Judiciary Committee, which normally has jurisdiction over the FBI. Sen. Patrick Leahy (D-Vermont), the minority leader of the Senate Judiciary Committee, along with five other members of the Judiciary Committee, sent a letter to the Intelligence Committee requesting that their committee be given time to review the bill. But the provision had already passed by the time their letter went out.


"In our fight to protect America and our people, to make our world a safer place, we must never turn our backs on our freedoms," said Rep. C.L. "Butch" Otter (R-Idaho) in a November press release. "Expanding the use of administrative subpoenas and threatening our system of checks and balances is a step in the wrong direction."


Charlie Mitchell, legislative counsel for the American Civil Liberties Union, said many legislators failed to recognize the significance of the legislation until it was too late. But the fact that 15 Republicans and over 100 Democrats voted against the bill in the House signifies that, had there been more time, there probably would have been sufficient opposition to remove the provision.


"To have that many people vote against it, based on just that one provision without discussion beforehand, signifies there is strong opposition to new Patriot Act II powers," Mitchell said.


He said legislators are now on the lookout for other Patriot Act II provisions being tucked into new legislation.


"All things considered, this was a loss for civil liberties," he said. But on a brighter note, "this was the only provision of Patriot II that made it through this year. Members are hearing from their constituents. I really think we have the ability to stop much of this Patriot Act II legislation in the future."


Gag orders hide truth about Ashcroft’s Spying

Gag orders hide truth about Ashcroft’s Spying

By HENRY SILVERMAN, July 7, 2004

“No question: John Ashcroft is the worst attorney general in history.” So wrote Paul Krugman last month in a New York Times column titled “Travesty of Justice.”

Among the Justice Depart-ment techniques Krugman highlights is Ashcroft’s penchant for withholding evidence in order to hide the truth. “His first move is always to withhold the evidence. Then he tries to change the subject by making a dramatic announcement of a terrorist threat” – what Frank Rich, New York Times theater critic, calls one of Ashcroft’s “elaborate doomsday performances.”

The most bizarre example of Justice Department truth-hiding comes in a case brought by the ACLU. The case challenges the provision of the Patriot Act that allows the government to issue National Security Letters to secretly obtain records of innocent people in connection with an intelligence investigation.

There are two serious constitutional problems with the statute. First, it allows the FBI to obtain sensitive information without any judicial oversight. The FBI issues National Security Letters unilaterally, and no judge ever reviews them. Second, the gag provision means that the public will never know how the FBI is using – or abusing – this intrusive power.

Because the statute includes a strict gag provision, the ACLU was forced to file its case under seal. t could not even reveal that it had filed the suit for over three weeks. Unlike other more limited gags, the gag provision does not require the government to show on a case-by-case basis why such broad secrecy is needed. And the gag order lasts forever – even after the investigation ends and no need for secrecy exists.

Even more troubling, the FBI can use a National Security Letter to obtain the name of anyone who has used the Web anonymously. The right to speak anonymously has been an essential element in our First Amendment freedoms. Anonymous speech has a long and noble history in this country, and, as the Supreme Court has recognized, persecuted groups have used this right to speak out. Even the founding fathers wrote the Federalist Papers under fictitious names.

The statute also allows the FBI to obtain, among other things, contact information, financial information (e.g., billing or credit information), and Web site e-mail address information. After challenging the gag provision, the ACLU is now able to disclose certain redacted documents in the case, and the government has agreed not to prosecute.

Because of the gag provision the ACLU can’t confirm or deny that it is representing any entity other than itself, nor can any other plaintiffs, if such exist, reveal themselves. This extreme gag rule itself is being challenged on First Amendment grounds as irrational and unnecessary.

Ashcroft had claimed the provision had never been used. But now, because of Freedom of Information Act requests, he has been forced to disclose the list of National Security Letters issued over the 15-month period since the Patriot Act was passed. The list, almost five pages long, suggests the FBI has been using this provision aggressively.

Before the Patriot Act, the FBI could issue a National Security Letter only if it had “specific and articulable facts” that the person targeted was a spy or terrorist. The Patriot Act amended the existing law to allow the FBI to obtain information on anyone at all. The only requirement is that the FBI believes the information is related to a foreign intelligence or terrorism investigation.

Of course, since no judge ever sees the letter, who will ensure that even this minimal requirement is actually met – Only John Ashcroft!

There are differences between the provision and the infamous section 215 of the Patriot Act. National Security Letters include only certain specified categories of information from certain businesses. Under section 215 the FBI can obtain any kind of information or “any tangible thing” from anyone at all. For a section 215 order (but not for a National Security Letter) the FBI must go to the Foreign Intelligence Surveillance Court.

Most important, neither National Security Letters nor section 215 orders include any mechanism that allows the recipient to challenge them in court before they must comply. And, of course, the person being investigated can know nothing about any of this.

All this “gagging” is one-sided. While the ACLU or any other plaintiffs in the case are prevented from talking about it, President Bush, Ashcroft and others in the government are free to wage a public campaign in support of these provisions of the Patriot Act, and are certainly doing so. The gag provision silences only those who oppose the act.

As Elaine Scarry wrote in Harper’s Magazine last month, the object of the Patriot Act is to make “the population visible and the Justice Department invisible. The act inverts the constitutional requirement that people’s lives be private and the work of government officials be public; it instead crafts a set of conditions that make our inner lives transparent and the workings of government opaque.”

The man standing behind this Act and enforcing its insidious gag provisions is John Ashcroft.

(Henry Silverman is professor emeritus of history at MSU. His specialty is 19th and 20th century political, social and cultural history. His column appears every other week. Care to comment? See our letters policy on P. 3.)