Fun with National Security Letters

If you think you have a strong constitutional right to be free from unreasonable searches and seizures, wait a few years. We do still have some rights. A police officer can’t knock on your door at random, and invite himself in to search for whatever he likes without a warrant, but many of the rules which were taken for granted are now easily overcome and are being slowly whittled away. The need for security against enemies foreign or domestic has become predominant over our individual needs for privacy.

There are many ways privacy rights usually coupled with the right not to be forced to testify against oneself, have been eviscerated. Here, the use of National Security Letters (NSLs) is on the table. That’s because, more so than even illegal wire taps, these NSLs represent the most pervasive form of violation of our dearly held privacy rights.

Let’s start with what the fourth amendment to the U.S. constitution actually states:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This is not an invitation to anarchy and does not mean that the government is powerless to search people or places. Reasonable searches and seizures have always been legal (thank goodness). But the law also contains the requirement before searches and seizures are made, that a warrant, i.e., an official piece of paper which states exactly or where and what is to be searched for, must be obtained by the government.

The warrants are not supposed to be handed out like candy on Halloween, but must be based on an officer or agent’s sworn testimony stating where he gets his or her information and explaining why it’s credible.

If this is done correctly, it would generally make almost any search reasonable, unless its repugnant for some reason.

This isn’t intended to be a treatise on the fourth amendment, so there are lot’s of issues not covered here, such as what “unreasonable” or “probable cause” means, but you should also know that the decision of whether to issue a warrant has always been the province of the judicial department.

There have also always been exceptions to the need for a warrant of which most people would approve. For example, would anyone feel that a police officer who witnesses a felony should have to get a warrant before arresting the person?

The reason the judiciary is involved is because we don’t trust the government, which is doing the arresting or searching, to also make the decision whether it’s reasonable to do so or not. So we instead entrust that duty to a judge, an independent branch.

But . . .

NSL’s have turned all the above on its head. If you know about them already, you are, I hope, regardless of your political persuasion, outraged. If you haven’t heard about them, this might shock you a bit.

These “letters,” similar in nature to a subpoena, have actually been around for nearly 30 years, for use by the FBI. They were rarely used until 9/11 and originally were meant to be voluntarily complied with. Consent to a search was always a common sense exception to the fourth amendment rule anyway.

The letters were also a way to obtain information about people who were suspected of being an agent of a foreign power or involved in counter-intelligence.

When the Patriot Act was passed it further permitted the FBI and then the Department of Homeland Security to serve the letters on various entities to discover information about their clientele, who are American citizens, such as telephone information, library records, etc., supposedly for national security purposes

Here’s the kicker. Not only is the recipient of the letter, who is not even suspected of any crime, required to provide the information, but, under severe penalty, including imprisonment, the recipient was not allowed to tell ANYONE about receiving the letter, including their lawyer.

Unlike with a search warrant, there was no necessity of obtaining a judge to sign off on it.

What happened to the fourth amendment requirement that a warrant be gotten from an independent magistrate upon a sworn statement? Poof. Gone. National security trumps requirements of the Constitution.

Think it only happens to bad guys. It has recently come out that the FBI has served some 140-170,000 of these letters since 9-11, and now about between 40,000 to 60,000 a year. Supposedly only high FBI officials could issue them, but that has now been delegated to many lower level officers.

Of course, who wants to or can afford to fight the government? Not many people. But if you get one of these letters, you automatically become an unpaid spy for the FBI, and are required to spy on people who entrust them with their privacy. And you can’t tell anyone. Not the wife or husband, not your kids, rabbi, priest or imam.

Ironically, if a person was actually convicted of a crime and required, as part of his sentence, to spy on his clients, it would be deemed cruel and unusual punishment or certainly a violation of what’s known as due process.

Yet, somehow, it seems that it is now okay to do force innocent citizens who have done nothing wrong, and aren’t even suspected of a crime, to become the government’s agents. Apparently, we do still have a draft. It just comes in this very weird form.

Robert Mueller, the FBI’s director, has recently testified before a congressional committee that the FBI has done a poor job deciding when to use these letters and that there has been little oversight on their use. And he’s the guy in charge!

In other words, whatever trust was put in the good faith of the FBI and their integrity, was sadly misplace. Do these letters have any real value in fighting terrorism. Mueller did not acknowledge that. To the contrary, he believes that the letters are extremely helpful. Given the secrecy involved, this is hard to verify.

Constitutional or not, the FBI does not even follow the loose rules it already has. “Widespread and serious misuse” of the NSLs was reported by the inspector general’s office to congress. Out of 77 files they looked at, 22 showed illegal use of the letters. That’s more than one in every four files. Out of 170,000 letters, that’s, ummmm, carry the 1 . . . a lot of illegally used letters.

Mueller also said that they would try and fix the problem. Hah! Indications are that it is worse than believed.

There is very little the FBI officer needs to do in order to use of one these letters. Basically, fill out the letter and send an email to a superior officer who can legally authorize it. Yet in an emergency, the agent can fill out a letter by themselves and not bother right away with the authorization. Of course, it turns out that when the FBI did use these “emergency” letters, there was really no emergency. They just didn’t feel like getting authorization.

It is not that the inspector general’s office was even especially hard on the FBI. They found no intentional misuse, which is hard to understand. With respect to the emergency letters, they simply referred to it as “unthinking use of an improper form”. How come that doesn’t apply when you fill out your tax return wrong.

In a related matter, it was found that the FBI repeatedly submitted inaccurate information to the special Foreign Intelligence Surveillance Court which handles warrants dealing with intelligence matters, undermining the government’s credibility according to the chief judge of that court.

None of any of the above is controversial. It is all admitted to by the FBI.

That’s why, even if you hate the ACLU (most likely meaning you lean right) there are some times you should be glad for their work, because this is the kind of case they take that almost no one else will. They did so in the case of some Connecticut librarians.

Depending on whom you believe, these librarians, after being served NSL’s, either first asked the FBI if they could consult their attorney and were told it was okay, or just told the FBI that they were going to do so and were not warned not to. Presumably, the FBI agents were used to people consulting their lawyers and then complying. These librarians called the ACLU and the use of the letter was challenged in federal court (Doe v. Ashcroft).

The librarians were shocked to learn from their counsel that the FBI was still using the letters and requiring people not to talk despite the fact that one lower federal court had already held the letters unconstitutional.

They were forced to take absurd measures even to talk to their attorneys, who advised them that to avoid government scrutiny they could not even call their offices in New York, but had to come see them there. The librarians were terrified when one of their names was accidentally not blacked out in court papers for anyone to see, or when one received a telephone call from a reporter who had learned his name, or when a newspaper later published their names, and so on. The fear was that they, who were not being investigated for doing anything wrong, would be arrested for obstructing justice for just talking about the letter, even though they had complied with the gag order in the subpoena.

When these litigants went to court they not only could not sit with their attorneys (is this getting ridiculous or what), they couldn’t even sit with each other, or even look at each other or their lawyers. Doesn’t sound like the home of the free, does it? Even serial killers and mass murderers are allowed to call and look at or talk to their lawyers, for crying out loud. These people didn’t even do anything except not want to be spies for the government.

One of the librarians involved tells a story of how his teenage son became upset when he answered the telephone and was advised by a reporter that his father was being investigated. It wasn’t true, of course, but the librarian wasn’t allowed to tell his son anything about it or explain to him what was going on. Imagine how that feels. And, again, this guy was just a librarian who wasn’t even accused of anything.

The lowest federal court which heard the librarian’s case decided the subpoenas were unconstitutional violating the 4th amendment and the 1st (freedom of speech). But just before the case was decided by the appeals court, the patriot was modified so that the permanent gag orders were not allowed except under very limited circumstances showing that it would endanger someone or cause a risk to national security. Challenges in court were now built in as was the right to consult a lawyer. This meant the issue became moot and there was no appellate court holding against the government that the gag order was unconstitutional. More congressional oversight has also been built in (for whatever that is worth).

Nevertheless, the government is still free to demand responses to these letters without asking a court’s permission. They are also free to gag a person from making it public if a government official certifies it is necessary, something again traditionally relegated to judicial oversight. In order to challenge this, a person has to have the knowledge, the financial ability, and the courage to challenge the government in court. It almost never happens.

There is obviously a need for the FBI to have great leeway in tracking terrorists. They also face tremendous burdens in fighting public corruption, terrorism, crime and gangs. The method by which they do their investigations cannot be so bureaucratically weighted down that they can’t do their jobs. However, permission to use these investigative tools without oversight by the judiciary naturally leads to sloppiness and abuse.

Security or liberty? Can we have both? The sound you hear is George Washington and Benjamin Franklin rolling over in their graves.

Tony Blair said recently that when the next bomb goes off, people cast aren’t to be asking what happened to their civil rights. They will ask -- why didn’t the government protect us? He’s probably right.

But compare that to the statement often attributed to and published by Benjamin Franklin (but probably not originally written by him): "Those who would give up ESSENTIAL LIBERTY to purchase a little TEMPORARY SAFETY, deserve neither LIBERTY nor SAFETY."

Perhaps Ole Ben would change his mind in these days of nuclear weapons. Admittedly, speculations like that are not real valuable.

Back in the 1940s an economics professor named F.A. Hayek wrote a little book called the Road to Serfdom. Vastly simplifying the central point —the road to totalitarianism comes not from some invasion by an evil force but by the citizenry learning year by year to let government control everything, until they are just totally used to being manipulated and following orders (p.s. sounds exciting but read a little before you buy this book – it is mostly about economics and dry as toast in August).

Neither Hayek (who complained that points in his book were often overstated) nor I suggest that the government cannot have coercive tools to maintain order or access to information about us to prevent crimes or protect us. They have to have and use these tools. But that is no excuse to end run the warrant requirement in the constitution.

And in a real emergency, the ticking bomb situation, exceptions already exist to the fourth amendment. But NSLs are far from a reasonable exception. They are an unreasonable exception designed to totally circumvent our constitutional rights. And, of course, they are just one more way that our rights have been subverted.

If you somehow missed the point of all this, I am pointing out that the supposed highest law, the Constitution, and particularly the bill of rights, does not really protect you anymore from an all powerful government. And we don’t care all that much.

Quite possibly, the road to serfdom will be lined with national security letters. Whether you care or not, is up to you.