This morning, the Washington Post broke its long-standing prohibition against publishing anonymous op-eds so that it could let one of your fellow Americans tell his story. This is your government, and it is being done in your name. Remember that.
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....
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.
I'll let a man greater than myself take it from here:
"The values of science and the values of democracy are concordant, in many cases indistinguishable. Science and democracy began - in their civilized incarnations - in the same time and place, Greece in the seventh and sixth centuries B.C. . . . Science thrives on, indeed requires, the free exchange of ideas; its values are antithetical to secrecy. Science holds to no special vantage points or privileged positions. Both science and democracy encourage unconventional opinions and vigorous debate. Both demand adequate reason, coherent argument, rigorous standards of evidence and honesty."--Carl Sagan
UPDATE: Laura Rozen asks all the right questions:
It's against the law for the FBI to systematically misuse NSLs and exigent circumstance letters as the DOJ IG has established it has to an extraordinary degree, but a law to date violated by the law enforcers and therefore with no enforcement. What would be the result for "John Doe" to violate his seemingly unlawful gag order and appear say on 60 Minutes and blow this out of the water? For the ACLU to line up all of the recipients of NSLs it has been asked to represent? What would that be? A dozen? Twenty? A hundred? Five hundred? Or perhaps, that a TV news investigation program show them anonymously, in accordance with their gag orders, as various tools (voice disguise, etc.) would allow? Officials would be resigning and fired faster than you can say "Walter Reed," one can imagine. These are the sorts of abuses that can continue only in the total darkness the government tried to demand in the end mostly for the sake of convenience. Will any FBI whistleblower appear on such a show, or will you just get former ABC investigative reporter turned FBI flack John Miller making excuses for why somehow 20% of the FBI's NSLs somehow were not reported to Congress, as Fine determined?
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