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.)