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BILL OF WRONGS -- THE EXECUTIVE BRANCH'S ASSAULT ON AMERICA'S FUNDAMENTAL RIGHTS

Chapter 6:  ROE V. DOE

Democracy abhors undue secrecy, in recognition that public knowledge secures freedom. -- JUDGE VICTOR MARRERO, October 2004

Had I been allowed to talk to the Senate or House while they were renewing the Patriot Act, I wanted them to explain to me how they perceived the distinction between a police force authorized to operate in secret and a secret police. Because I didn't see the distinction myself. -- JOHN DOE, April 2007

One of the commonplace perversities of totalitarian societies is the manufacturing of official truth -- an endeavor that requires persistent attention to detail. In Milan Kundera's The Unbearable Lightness of Being, fictitious Czechoslovak apparatchiks bungle their attempt to turn a small-town mayor into a "nonperson" when they inadvertently leave his black bowler hat in place after airbrushing him out of a photograph. The bowler floating above a gap in a line of sober dignitaries is a permanent reminder of the mendacity by which the government survives.

In January 2006 New York Times reporter Alison Leigh Cowan filed a story from a San Antonio hotel ballroom, where one citizen's absence was as absurd as the man missing beneath the floating bowler in Kundera's novel.

Cowan wasn't writing fiction.

Her story on the American Library Association's winter meeting was as nuanced as anything you could have read in the Czechoslovak press after the Soviet Army smothered the democratic promise of Prague Spring in 1968.

Cowan was covering a banquet where the recipient of the annual intellectual freedom award was "John Doe." His identity, if revealed, could result in his immediate imprisonment. Or the imprisonment of anyone who revealed it. Yet everyone in the room knew who John Doe was, even if they didn't know the identity of the FBI agent described in one court document as "John Roe," who had handed John Doe a national security letter that included a perpetual gag order.

John Doe had gone to court to fight the demands and gag order conveyed in the letter. In court filings responding to that request, the government failed to redact the name of the organization for which John Doe worked: the Library Connection of Windsor, Connecticut. Once the government's sloppy redaction revealed that name, which the government insisted was a national security secret, Cowan tracked down its director and executive board members. One or all of them had to be John Doe. But by identifying John Doe, Cowan herself might have been subject to arrest. So she wrote around the story, arriving at a circumspect conclusion:

Alice S. Knapp, a Stamford librarian who is this year's president of the Connecticut Library Association, said she was there "taking pictures left and right." But the Library Connection's executive director, George Christian, and the vice president of its board, Peter Chase, did not attend. Mr. Chase's absence was especially odd since he was to be the Connecticut Library Association's advocate on intellectual freedom this year.

Without commenting on John Doe's likely identity, Ms. Knapp confirmed that she had assumed many of Mr. Chase's speaking duties this year. For moral support, she has been nominating John Doe for other awards.

Wink wink.

Nod nod.

George Christian and Peter Chase were John Doe 1 and John Doe 2. Christian, in fact, was the recipient of the intellectual freedom award being handed out in San Antonio that night. On the advice of his attorney, he stayed at home in Hartford, aware that he could he arrested for walking onto the stage to pick up his five-hundred-dollar check and plaque.

The Roe v. Doe story began on July 8, 2005, when 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, which provides computer services for twenty-six Connecticut libraries. As executive director, Christian was responsible for the organization's legal affairs. The letter should be directed to him.

The following week, two FBI officers showed up in Christian's office. He was handed a letter demanding electronic records that would determine who had used a library computer between 4:00 and 4:45 P.M. on a specific day six months earlier. Christian's background is in corporate IT. He was hired to design and run the systems that provide computer services and electronic data preservation to the libraries that fund the consortium. He understood what the agents wanted and knew why he couldn't provide it.

"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 computers behind them -- if only to make hacking more difficult." The specific information wasn't available unless all the information on every library patron was turned over to the FBI. The agents were looking for an electronic needle in a haystack.

"Don't worry, we've got ways," Agent Aram Crandall replied. He told Christian to pull the information together and comply with the demand stated in the letter.

While two FBI agents waited in Christian's office, he read the third paragraph of his national security letter, which cited a statute and certified that the information the agent had 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. He says he would have cooperated if he believed there was a genuine and immediate terrorist threat. It was July 8. The letter was dated May 19. Almost a week had passed since the FBI had called his office. The letter was not even addressed to him but to the Library Connection employee FBI agents had initially contacted.

"This didn't look like the FBI was in hot pursuit of anyone," Christian said.

The third paragraph of the letter prohibited the recipient from "disclosing to any person that the FBI has sought or obtained access or information to [sic] records under these provisions."

Christian took a risk.

"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." The agent wrote a private phone number on the back of his card and told Christian to have the attorney call him.

Christian made up his mind that he wasn't going to comply before the agents walked out of his office. He called the Library Connection's attorney, whose work is focused on keeping nonprofits in compliance with federal and state law. "She had never heard of a national security letter," Christian said. "She had never seen those three words used together like that." The lawyer assigned several law students the task of researching national security letters. When they completed their research, she told Christian he was in a real bind. Denying the FBI's demands 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 executive board.

Peter Chase is the librarian from central casting. Soft-spoken, dignified, and earnest, he is the director of the town library of Plainville, Connecticut (pop. 17,000, 90,000 volumes). He is also a ferocious defender of the privacy, and what he describes as the "intellectual rights," of his patrons. Chase never had any doubt that the Library Connection would refuse to comply with the FBI's request for records. What his lawyer told him strengthened his resolve.

"They were going after our patrons with a national security letter?" Chase said. "Our lawyer told us 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! We're not going to do this."

Their attorney put them in touch with the American Civil Liberties Union, whose attorneys Ann Beeson and Jameel Jaffer drove up to Connecticut from New York to meet the librarians. Beeson said she didn't feel secure discussing the case over the phone. The lawyers told no one in their office where they were going, fearing an inadvertent leak might result in charges filed against them and their prospective clients. It was not clear that a recipient of a national security letter could speak to a lawyer without breaking the law. "There was a real risk," Beeson said. "We had seen the FBI play hardball with our other [national security letter] client. We would like to think they wouldn't act that way with these folks. But you never know."

Beeson's other national security letter client, a John Doe plaintiff, is the owner of a small Internet access and consulting business in New York. He had won a lower court ruling nine months earlier, when a federal judge ruled that the national security letter that John Doe had received violated his First Amendment and Fourth Amendment protections.

To say John Doe won is an understatement. Federal district judge Victor Marrero wrote a 120-word opinion that declared national security letters violations of Fourth Amendment protections against search and seizure and the First Amendment guarantee of free speech. Under the law governing the use of national security letters, as modified by the Patriot Act in 2001, the FBI could compel a recipient to produce documents or electronic files with no opportunity to challenge the demand in court. Searches and seizures, the judge wrote, "must be performed pursuant to a valid warrant based upon probable cause," which requires approval by a judge. Yet NSLs were being issued by any one of fifty-six supervisors in regional FBI offices. And there was nothing in the letters that even implied that a recipient could challenge an NSL in court.

"The literal terms of the non-disclosure order," the judge wrote, "would bar the recipient from even consulting with an attorney to file such a challenge." 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 NSLs issuance to the clerk of the court and to the presiding judge, again, in violation of the literal terms of the non-disclosure provision," wrote Judge Marrero in a blistering, indignant opinion.

The government had argued that the nondisclosure provision didn't stop John Doe from hiring a lawyer. But Judge Marrero observed that thousands of NSLs had been issued since they were authorized in 1986 and not one recipient had ever challenged a letter until John Doe showed up in court. The judge also had a problem with a perpetual gag order that "presupposes a class of speech, that, for reasons not satisfactorily explained, must forever be kept from public view, cloaked by an official order that will always overshadow the public's right to know."

"Democracy," Judge Marrero wrote, "abhors undue secrecy, in recognition that public knowledge secures freedom."

The ACLU attorneys representing their invisible client had hit the ball out of the park. Or out of the federal courtroom in Manhattan. The judge stayed his decision for ninety days, to allow the government time to submit motions to protect sensitive information that might be compromised by his orders. And he observed that some possible legislative fixes were moving through Congress. But he ruled that an FBI agent walking into someone's office with a letter that demanded private information, gagged the recipient forever, denied access to an attorney, and provided no recourse to a judge was flatly unconstitutional. Which in another time would have seemed like an exercise in judicial moderation.

The government appealed, and while the case was on appeal, the ACLU attorneys in New York got the call from Connecticut.

To the ACLU the Library Connection case was timely. While Beeson and Jaffer sat down to listen with the librarians in Connecticut, Congress was debating and revising the Patriot Act. John Doe New York was gagged and in the middle of an appeal, unable to testify before Congress or even speak to a member of Congress about his experience. Attorney General Alberto Gonzales was reassuring the public that the Patriot Act was not being used to go after libraries. United States attorneys across the nation were out selling the repackaged Patriot Act before any forum that would listen. And four librarians from Connecticut, whose experience with the law contradicted most of what most of its proponents were describing, were forbidden to tell their story, even to their elected representatives in Washington.

The librarians signed a retainer agreement with the ACLU attorneys, and the ACLU signed on to the case as both counsel and co-plaintiffs. They filed suit in federal court, making the same Fourth, Fifth, and First Amendment arguments they had made on behalf of John Doe New York. Their most urgent request was an immediate preliminary injunction that would allow their clients to speak about their experience with a national security letter.

The assistant U.S. attorney defending the government went, to use a lay term, ballistic. To disclose that the Library Connection had received a national security letter would jeopardize national security, argued Lisa Perkins. The subject who had used library computers would be tipped off. Terrorists working in American libraries would be made aware that the FBI was looking over their shoulders and adapt their tactics to avoid surveillance. An instrument Congress had authorized to fight terrorism would be undermined.

The case was tried under the highest national security standards, with every document filed under seal and scrutinized by U.S. attorneys, who would redact much of the information before turning it over to the court, where it would become part of the public record. The librarians would remain gagged for the duration of their trial, prohibited from telling family members and employees that they had received an NSL. There were also two Jane Does, Barbara Bailey and Janet Nocek, also Library Connection board members. The two women were less prominent, Bailey said, because the media quickly figured out the identities of George Christian and Peter Chase. She said it was very difficult, however, to conceal her situation from her husband. Absent their spouses, who could not be told of the lawsuit, the librarians watched their district court hearing, which took place 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.

Even the evidence used against them was top secret. The FBI's demand for their library records was based on a classified file that could not be made public without putting national security at risk. The librarians, their lawyers, and the judge would have to trust that the threat to national security was serious enough to warrant gagging the librarians for the rest of their lives.

Something in that argument didn't pass Judge Janet C. Hall's smell test. A Bill Clinton appointee, she'd gone from law school to an international law firm, worked as a trial attorney and special U.S. attorney at the Department of Justice, then become a partner at a Connecticut office of a large firm. She quickly came up with a Solomonic solution regarding the classified evidence. She had her own high-level security clearance, obtained before she was appointed to the federal bench. She announced that she would read the classified file in her chamber.

She was not impressed with what she read.

"Judge Hall wrote a give-me-a-break opinion," said Beeson.

The judge found nothing in the classified files or the arguments of the government's attorneys that justified suspending the librarians' First Amendment rights. She seemed offended that the FBI would make such a demand. She stopped short of ordering the librarians to catch the next Acela to Washington and tell their story to the Congress. But she was clearly disturbed by the agency's contempt for the First Amendment.

She also rather discreetly called the FBI agents and the former attorney general, well, liars. Ashcroft, in the instance cited by the judge, had engaged not in genteel dissembling but in outright lying complemented with a crude insult. The ban on the librarians' speech was "particularly noteworthy," Judge Hall wrote, because Patriot Act proponents had reassured the public -- and librarians in particular -- that the act was being narrowly applied. The judge quoted a speech Attorney General John Ashcroft had made in Memphis in 2003, when he ridiculed librarians, "accusing those who fear executive abuse of increased access to library records under the PATRIOT Act of 'hysteria' and stating that 'the Department of Justice has neither the staffing, the time nor the inclination to monitor the reading habits of Americans.'"

(Judge Hall didn't fully capture the flavor of Ashcroft's speech, in which he seemed to be channeling the late and rhetorically overblown Spiro Agnew: "The charges of the hysterics are revealed for what they are, castles in the air built on misrepresentation, supported by unfounded fear, held aloft by hysteria.... The fact is, with just 11,000 FBI agents and over a billion visitors to America's libraries each year, the Department of Justice has neither the staffing, the time nor the inclination to monitor the reading habits of Americans. No offense to the American Library Association, but we just don't care.")

The Patriot Act was up for renewal, Judge Hall wrote, and "the very people who might have information regarding investigative abuses and overreaching are preemptively prevented from sharing that information with the legislators who empower the executive branch with the tools used to investigate matters of national security."

If George Christian had been George Tenet, he might have called Judge Hall's opinion "a slam dunk."

The government appealed and got an automatic stay on the decision, and the four librarians from Hartford found themselves stuck in a through-the-looking-glass judicial process.

They had already shredded, hidden, or destroyed any paperwork, correspondence, or electronic files related to their national security letter. They had to hide their role in the lawsuit from their spouses, children, family members, and friends; should anyone learn about the national security letter and even inadvertently leak the information, he would be subject to prosecution and prison. "It was the last thing you would want to expose your loved one to," said an earnest Peter Chase, left to describe a government document as if it were the AIDS virus.

Several days before Judge Hall handed down her decision, Alison Leigh Cowan, the enterprising New York Times reporter who had pored over the court records, called Chase at home. She began her phone interview with an innocuous question about his work as chair of the Connecticut Library Association. When Cowan asked Chase if he had seen the trial in Hartford, he panicked. A cannot-tell-a-lie kind of guy, Chase knew the reporter had been in the courtroom and was aware the plaintiffs weren't there. If he answered yes, he would by default admit that he was one of the plaintiffs who'd watched from a remote site. He hung up, confirming her suspicion. The Library Connection plaintiffs were required to report any contact with the media, so Chase called his attorneys in New York. They told him he had to leave town. If the Times identified him in a story, he would be besieged by reporters. And perhaps by the FBI, who would be able to obtain his phone records and verify that he'd had an extended conversation with a New York Times reporter. Chase's attorneys in New York retained a criminal defense lawyer to represent him, and Chase told his wife they were leaving earlier than planned for their Labor Day vacation.

He didn't tell her why.

By November, Cowan reported that the Library Connection was the recipient of the NSL. "As government secrets go, this one did not take long to unravel," she wrote. Though the government was engaged in what might described as redactio ad absurdum, it had failed to redact its own court filing. Cowan's account of the sloppy handling of what the FBI considered national security secrets made the government legal team look like Keystone counsel:

It was right there, in bold type, on Page 7 of an Aug. 16 memorandum of law, in between black splotches applied by government censors to wipe out hints of the organization's identity.

It was also on Page 18 of the memo, and it was visible in the header line on a court Web site to anyone who looked up the case using the file number.

The name of the organization was so evident, both through telltale clues and explicit references, that The New York Times published it six times in news reports on the continuing court case, and it was named in other publications as well. Yet the federal government continues to argue in federal courts in Bridgeport, Manhattan and Washington that the identity of Library Connection, a consortium of libraries, must be kept secret, in the interest of rooting out potential terrorists. A decision from the United States Court of Appeals for the Second Circuit, in New York, could come soon.

(You can almost hear The Daily Show's Jon Stewart screaming, "Look, look, it was everywhere!")

The government's redactors had bungled the most basic tasks of redaction, inadvertently revealing the name of the secret recipient of the NSL. And Ann Beeson believed that the elaborate ruse had run its course and the librarians would easily prevail in the Second Court of Appeals in New York. "I thought it would be a no-brainer," she said. "We thought we wouldn't even have to file papers. We thought we'd call the judge on the Second Circuit and say, 'I guess you read the paper today, and don't you want to talk?' And instead they forced us to brief the whole thing."

Black Panther Bobby Seale had been bound and gagged in the courtroom when Judge Julius Hoffman tried the Chicago Eight (which became the Chicago Seven when Hoffman sent Seale to prison for contempt of court) in 1969. The Hartford Four were gagged and invisible -- even if anyone paying attention to the Times and half a dozen other media outlets knew Christian and Chase by name, though the Times couldn't report that they were John Does without itself breaking the law.

Although their organization's name had been revealed, Christian and Chase (and executive board members Barbara Bailey and Janet Nocek) were forced to continue the invisible-plaintiff charade throughout the appeals process, under threat of prosecution should they reveal that the Library Connection had received an NSL, which, of course, had already been revealed by the Times. When the ACLU attorneys attached a copy of The New York Times to a motion they filed, the government, in a hearing closed to the public, insisted that the Times article had to be redacted. And although the cat was out of the bag, Department of Justice attorneys insisted on redacting the phrase "the cat is out of the bag" from pleadings filed by the ACLU attorneys.

"It was an oral argument in a closed courtroom," Beeson said. "The level of secrecy was absurd. The Times articles were completely redacted. You couldn't even see 'New York Times.'"

When a hearing was finally scheduled in open court in New York in November 2005, the Connecticut librarians were allowed to attend only if they agreed to strict conditions that would preserve their anonymity. Oral arguments on their appeal would be held in a large federal courthouse with several courtrooms, so they could sit in the courtroom rather than a remote location, although they could not enter the courtroom together, sit together, speak or make eye contact with each other or their attorneys while in the courtroom. And they had to leave separately.

The case was argued with most of its content elided, which must have bewildered two dozen judges from Peru, outfitted with headsets that allowed them to listen to simultaneous translation as they observed how jurisprudence is done in the big leagues. Something was lost in translation.

"Revealing our identities was a national security threat?" said Peter Chase. "There were librarians from Connecticut all over the courtroom, and every one of them knew I was John Doe."

The Connecticut case had been consolidated with John Doe New York's case. But one difference remained between the two. Everyone except the Peruvian judges knew that the Library Connection had received an NSL and that George Christian and Peter Chase were almost certainly John Does 1 and 2 from Connecticut. The hearing became a courtroom version of Where's Waldo? as the Connecticut John and Jane Does looked around the room trying to guess who was the New York John Doe while the New York John Doe looked around the courtroom trying to guess who the Connecticut John and Jane Does were.

Despite the manifest absurdity of national security secrets that could be found in The New York Times and anonymous plaintiffs whose identities were widely known, the appellate court judges refused to lift the gag on the librarians. "That's why we took the radical, or somewhat radical, action of going to the Supreme Court with an emergency motion," Beeson said.

Supreme Court justice Ruth Bader Ginsburg's opinion, some of which was redacted and classified, was sympathetic with the "anomaly" the librarians confronted: "Doe -- the only entity in a position to impart a first-hand account of his experience -- remains barred from revealing its identity, while others who obtained knowledge of Doe's identity -- when the cat was inadvertently let out of the bag -- may speak freely on the subject."

Although Justice Ginsburg used the previously redacted phrase "cat ... let out of the bag," she refused to lift the gag order on the librarians.

Beeson was stunned. "I'm not even sure when the last time -- I mean the fact that the Supreme Court issued a decision that was classified -- there was any example of this. Or if there was any other example. Other judges in cases regarding secrecy assumed that they would have to do everything in their power to avoid issuing any part of a decision that was not available to the public."

The highest court in the country had ruled that the librarians would not be able to relate their experience to members of Congress who were considering renewing the very provision that had the librarians gagged.

On one occasion, Peter Chase had to decline an invitation from the League of Women Voters to debate U.S. attorney Kevin O'Connor on the merits of the Patriot Act -- because he had been gagged by U.S. attorney Kevin O'Connor. (O'Connor went ahead with his half of the debate.)

Then the FBI folded. After nine months of hardball litigation, the government lifted the gag order and dropped the demand for computer records. "Their timing was sinister," said Chase. A far better choice of word than "cynical." Approximately two weeks after President Bush signed the renewed Patriot Act, the John Does of Connecticut were free to call their senators and representatives. "After the revised Patriot Act was signed into law," Chase said, "the government suddenly decided that our identity was not really a security threat after all and that our gag should be lifted. Nothing had changed in the case, so what happened to the threat to national security?"

"They also took away our standing," Chase said. There was no reason to go to court to fight when there was nothing to contest. Ann Beeson said that's correct in a purely technical sense. They could have continued the fight. But John Doe New York, who remained gagged, provided a better vehicle to advance the claim that the government's use of national security letters is a violation of the Bill of Rights.

To the government, the librarians were now irrelevant. They had been gagged long enough to keep them out of the public debate of the law that kept them gagged. John Doe New York's case was remanded back to Judge Marrero's courtroom to be retried, taking into consideration the changes Congress had made in the Patriot Act.

Congress had made some improvements in the act. Recipients of national security letters would be allowed to consult an attorney. There was now a process by which NSL recipients could go to court to challenge the FBI. And the penalty for violating the terms of an NSL -- five years in federal prison -- was spelled out so that anyone who might violate the law wouldn't be left in the dark.

The most cynical, or perhaps "sinister," reform eliminated the perpetual gag order while at the same time keeping it in place. Recipients of NSLs can now go to court to challenge their gag orders at one-year intervals after the first-year anniversary of the letter. But there's a catch. Judges are required to accept as conclusive the FBI argument that a specific gag remains essential to national security. Call it the Judge Hall amendment. No judge can lift a gag unless the FBI agrees it can be lifted.

Six months after the Second Court of Appeals sent John Doe New York back to Judge Marrero's court for a new trial, the inspector general of the Department of Justice released a report that documented the volume of NSLs the FBI had issued between 2003 and 2005: 44,000 NSLs containing 142,074 requests, in one investigation demanding information relating to 11,000 telephone numbers. The report excoriated the FBI for its abuse of NSLs -- and exigent letters intended to be used in the most dire circumstances, such as a kidnapping or an imminent threat. Many of the letters had been issued in violation of the agency's own guidelines.

At about the same time, Connecticut's U.S. attorney, Kevin O'Connor, got a promotion. He was called to Washington to replace Kyle Sampson, the young deputy to Attorney General Alberto Gonzales who resigned because of his role in the partisan firing of U.S. attorneys who weren't considered "loyal Bushies." Telegenic and aggressive, with degrees from Notre Dame and the University of Connecticut law school, O'Connor is expected to return to Connecticut to run for elected office.

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