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A Patriotic Act

JUNE SANDRA NEAL / Courant.com | September 25 2006

On Feb. 15, 2005, someone walked into a Connecticut library, sat down at a computer and used the Internet from 4 to 4:45 p.m.

Five months later, two FBI agents walked into George Christian's Windsor office and handed him a letter. It demanded "any and all subscriber information, billing information and access logs of any person or entity related to" the library computer's IP address on that February day.

To Christian, executive director of the Library Connection, the scene seemed a G-man version of the Odd Couple: one agent dressed nattily in a blazer and tie; the other gruff, in a knit muscle shirt.

And though the atmosphere of the meeting was tense, Christian suspected the FBI's demand wasn't its Priority No. 1.

"It was addressed to the wrong person; it was dated May 19, 2005, and it referred to an event that had taken place six months ago."

The document they handed Christian was a national security letter, a piece of the Patriot Act few people had heard of at the time.

Did Christian understand, the agents asked, that he could discuss the letter with no one?

"I said I did, but I would like to speak to my lawyer."

"Fine, have him give me a call," one agent said, and gave Christian his business card.

Even the agent apparently didn't know that the order he had handed Christian prohibited the library executive from discussing it with anyone - including his organization's board of directors, his wife or even his own attorney.

Had the national security letter been issued to someone else, it might have attracted little attention or created much stir as its recipient complied with its terms. But for Christian, whose agency oversees computer and other services for a consortium of 27 libraries around the state, it was a boot on his neck.

For one thing, he knew that Connecticut is one of 48 states with a statute expressly protecting the confidentiality of library users. Secondly, the letter struck at the core of Christian's definition of a library: "The nation's most democratic institution that supports a free exchange of information."

Nevertheless, Christian was caught in every thoughtful American's dilemma with the Patriot Act. After the terrorist attacks of Sept. 11, 2001, existing surveillance laws seemed ineffectual vestiges of a half century past when the bad guys wore a uniform or a trench coat. Facing a ubiquitous and virulent enemy with no particular geography or nationality, the government searched for broader authority. The Patriot Act was promulgated quickly, while shocked and angry Americans were still staring at a chasm of ashes and fearful that their government could not protect them from further attack.

The national security letter is a written demand for information without a court order. Under Section 505 of the Patriot Act (adopted five years ago next week), searches are no longer confined to people under suspicion. Anyone can be a target, as long as that person is considered relevant to a terrorism investigation. The letter also comes with an automatic gag order that forbids the recipient from discussing the letter's contents, or even the fact that the letter exists.

"You are further advised," the letter to Christian said, "that Title 18, U.S.C. Section 2709(c), prohibits any officer, employee or agent of yours from disclosing to any person that the FBI has sought or obtained access to information or records under these provisions."

The Justice Department papered a lot of territory with the letters: businesses, colleges, even casinos. Some 30,000 were going out annually, The Washington Post reported.

Proponents view the Patriot Act as necessary adaptation; after all, there were no suicide bombers or terrorist cells in 1789. And sometimes personal freedoms have to be sacrificed for the sake of security. Three months after its passage in 2001, then-Attorney General John Ashcroft sharply dismissed critics, telling Congress: "To those who ... scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve."

In Windsor, however, lost liberty was no phantom. To Christian it felt very real.

Even on a practical level, the FBI's demand seemed wrong.

The government said it was interested in only about an hour and a half of computer data from that February day - but Christian knew such precise disclosure was not possible. The FBI would have to siphon off a large stream of the telecommunications database, perhaps exposing the Internet activity of 300,000 library patrons.

But more importantly, as a student of the Constitution and a strong believer in its principles, Christian felt the FBI's demand violated his library patrons' First and Fourth Amendment rights - and he was not about to allow it.

"When a soldier takes his oath, he doesn't swear to defend the president or the country. He swears to defend the Constitution," Christian said.

He believed he should deny the FBI's request, but knew he could not make such a decision on his own.

"So I broke the law in small steps," Christian said. He set up a secret meeting with the library organization's executive board.

Like Christian, the members of the Library Connection's executive board are veteran librarians and staunch believers in the freedoms bestowed by the U.S. Constitution. Beyond that, they understood the role of the library in preserving democracy. And, after some difficult reflection, they all agreed with Christian's assessment.

"We protect access to ideas, even if those ideas are unfashionable," said Peter Chase, director of the Plainville Publc Library.

Chase serves on the board with Janet Nocek, head of the Portland library; and Barbara Bailey, board president at the time and director of the Welles-Turner Memorial Library in Glastonbury.

"We are trained in privacy issues," said Bailey. "Protecting our clients' privacy also guards freedom of ideas and expression."

But never in Bailey's education or training had she anticipated a showdown with the U.S. government. It was, she conceded later, "an emotional roller-coaster."

The decision to deny the FBI's request was unanimous. But not easy.

Nocek, for example, vigorously supports the government's fight against terrorism, perhaps more than some. She and her husband lost a longtime friend when the first plane hit the World Trade Center's North Tower, and their colleagues had relatives who died. "It became very personal," she says quietly.

"We could have agreed to it and no one would ever know we sold out," said Chase. "But we would not. They were illegally spying on citizens and wanted us to go along with it."

Bailey worried about the other 14 members of the board whose opinions she could not poll. This would have to be a decision made by just the four of them and would affect every library and library user in the state.

The librarians never argued the government's need to conduct clandestine surveillance in the pursuit of homeland security. Their concern was solely the absence of a court order, given that the government could easily obtain one from the Foreign Intelligence Surveillance Act (FISA) court, created to handle these issues. Further, they wanted the gag order lifted, not to disclose the contents of the letter, but to be able to testify before Congress, which was debating re-authorization of the Patriot Act. They wanted to say that national security letters were indeed being used on libraries - something the government had denied.

The board members did their homework and discovered that, a year earlier, the American Civil Liberties Union had sued on behalf of a private New York Internet company that received a national security letter. The judge ruled that the letter violated the company's constitutional rights. However, that ruling had been stayed and could not help them now.

They asked the ACLU to represent them and quickly learned the enormity of that decision: They would have to sue the attorney general of the United States. Still, they could not know that their decision would turn into a legal head-on collision of the First Amendment and the Patriot Act that commanded national news coverage for more than a year.

Ann Beeson, the ACLU's associate legal director and lead attorney for the case, didn't trust the telephone. Instead, the attorneys and the librarians communicated back and forth with e-mails they opened with a secret code, carefully watching should anyone come near.

On Aug. 9, 2005, the ACLU, on behalf of Library Connection Inc., filed suit against U.S. Attorney General Alberto Gonzales, FBI Director Robert Mueller and an FBI official whose named was sealed. The suit charged that the national security letter violated the Fourth Amendment because it demanded personal records without a court order, the Fifth Amendment because it is "unconstitutionally vague" and the First Amendment because of the gag order. The case would be kept under tight seal and the Library Connection would be known only as John Doe.

The gag order was more like leg irons; the librarians dragged it wherever they went. The New York Times said the "Library issue has become the most divisive in the debate on whether Congress should expand or curtail the government's power under the Patriot Act."

"...We have not sought a section 215 order to obtain library or bookstore records, medical records, or gun sale records," Gonzales told the Senate Select Committee on Intelligence on April 27 last year. "Let me be clear - the reading habits of ordinary Americans are of no interest to those investigating terrorists or spies," he said.

The librarians wanted to scream.

This is a "national political debate of historic consequence," said the ACLU. But the court case could take years. So, on Aug. 15 last year, the organization filed an emergency application with the U.S. District Court, 2nd District, to lift the gag order.

John Doe won that round. However, Judge Janet C. Hall stayed the ruling to give the government time to appeal.

Pleased with the ruling, but not her situation of still being barred from attending her own organization's court hearing, Bailey recalls her anger: "We had just won the right to speak, but we were forced to sit in a small room in the Federal Building in Hartford, gagged, watching the proceedings in Bridgeport on closed-circuit TV. I felt like I was living in `1984,' " she said referring to George Orwell's classic novel about a repressed society.

The silence order made the librarians' personal lives miserable. This was the most difficult decision of their careers and they couldn't confide in the people closest to them. "How was I going to go to New York to meet with the ACLU staff and not tell my wife?" Chase recalls.

They never knew what would happen to them or how long the case would go on. They went to work, sometimes scared, always worried.

In preparation for the case, Chase and Christian had to submit affidavits, which included their professional histories. Chase had something in his record that could identify him: He was one of the few Connecticut people selected for inclusion on the national Intellectual Freedom Commission's Honor Roll. It was in recognition for his successful fight to keep Madonna's controversial book, "Sex," on library shelves. He feared other librarians would be able to deduce his identify, but those who did said nothing about it. Then came an additional insult to their sensibilities. In an apparent case of sloppy redacting, the FBI left exposed the names of both the Library Connection and Peter Chase in several documents posted on the district court's website. They were published in The New York Times.

Calls from the press kept coming, Chase couldn't talk, and his staff simply took messages, no questions asked. He is still touched by their deference to his plight.

The silence was the worst of it.

"We had only each other," Bailey said. But she got by with her sense of humor. "When we went to meet with the ACLU attorneys [in Manhattan], we got to Battery Park. There were people dressed like the Statue of Liberty, so I had my picture taken with them. I am the one holding up the American flag."

Their meetings at the ACLU offices played like a scene from "All the President's Men" where Bob Woodward meets Deep Throat in the garage. "We couldn't walk in together, couldn't make eye contact with our attorney. They wouldn't even introduce us to anyone," Nocek recalls.

When she was summoned to jury duty, "They asked if I was involved in any civil suits. I didn't know what to say. Fortunately, I wasn't asked to serve."

One night, Chase returned home from work when his son, Samuel, rushed to him. "Dad, someone from the AP [Associated Press] called and mentioned the FBI. Are they coming after you?"

"I answered, `I'll be safe as long as I don't talk about it.' " He hoped that was true.

Nocek found that being mute has profound intellectual consequences. Christian says he'll never forget her analysis when she said: "Having your speech cut off impedes your thinking. I had to put my thoughts into a box. The lack of discourse truly affects the democratic process."

There was another insult. That spring, Chase, the president of Connecticut's Intellectual Freedom Commission, was invited to debate the Patriot Act with U.S. Attorney Kevin O'Connor. Of course, he couldn't participate and had to keep his mouth shut, fuming inside as O'Connor told the audience that the government didn't use national security letters against libraries.

In the meantime, support for John Doe was coming from many directions.

Editorial writers took up its case. The ACLU's online petition, "Let John Doe Speak," pulled 25,000 names. The American Library Association and the Free Congress Foundation joined the ACLU at a rally in Washington, D.C., to demand that the Justice Department lift the gag order. Sen. Russ Feingold, D-Wis., and Reps. Jerrold Nadler, D-N.Y., and Bernard Sanders, I-Vt., came to support them.

They were running out of time. Congress was nearing the end of its debate.

A second emergency application, this time to the Federal Court of Appeals, failed to lift the stay. All that was left was the Supreme Court, so the librarians brought their plea to Justice Ruth Bader Ginsburg.

In their plea, the ACLU lawyers said: "John Doe is a crucial messenger in the debate because it is the only known NSL recipient that can provide firsthand knowledge of the FBI's use of NSLs to demand library records."Ginsburg, too, maintained the stay, but issued what the ACLU termed, "an unusually detailed opinion in which she noted the merits of the ACLU's arguments."

There was yet another insult. John Doe was honored by The American Library Association with the 2005 Robert B. Downs Intellectual Freedom Award, which was to be presented at its convention in Texas. But the guests of honor had been stripped of the intellectual freedom to comment or attend.

The clock ran out. In March of this year, President Bush signed the revised Patriot Act into law. The Connecticut librarians had lost their chance to participate in the debate.

Then came a cascade of events that, although welcome, deprived the four of their hoped-for court ruling on the constitutional issues.

Incredibly, about six weeks after Congress re-authorized the Patriot Act, the FBI voluntarily lifted the gag order. "Clearly, national security wasn't threatened," said Chase. "This was sheer hypocrisy and unapologetic deception. And I was supposed to throw my lot into it."

Nocek learned about it from her husband, who was reading the newspaper while they were flying home from Europe. He mused that the librarians "had done the right thing," unaware that one of them was sitting right next to him. The relief was immense. "Finally I could tell him a little," Nocek says.

They still could not speak to the public until the court processed the FBI's withdrawal of the gag order. In May, John Doe was named "Outstanding Librarian of the Year" by the Connecticut Library Association. The association asked Bailey, as president of both the Connection and of the Library Association, to accept the award on Doe's behalf. She had to find an excuse to decline.

Next, the federal appeals court acted on the FBI's withdrawal and officially lifted the gag order.

The four librarians held their first press conference on May 30, although there were still some constraints on what could be said.

The second shoe dropped three weeks later, on June 26, when the government abandoned its demand for the information altogether. A letter from the FBI's New Haven bureau to the ACLU said it would "not seek to enforce the national security letter delivered to your client, Library Connection, Inc., by FBI personnel on or about July 12, 2005."

They were free - for the most part. In June, Chase attended the American Library Association Convention in New Orleans. "We announced that the FBI had abandoned the case and everyone drank a toast."

That same month, the Connecticut Council on Freedom of Information honored the four with the Stephen Collins Award for their "commitment to the public's right to know." This time, they could accept it.

"But it's not over," Chase warned. "There are still sealed documents that, when opened, will show [the Justice Department's] arguments are not what they said they were."

It didn't take long. On Aug. 3, 2006, Justice Ginsburg ordered some of those documents open.

The FBI had sealed some pretty benign stuff: the judges' positive comments on John Doe's arguments; a copy of the New York Times that published the names exposed by FBI error; and a list of clichés from previous cases the ACLU had cited in its argument, such as "Once the cat is out of the bag," "The ballgame is over" and "The genie is out of the bottle." But with the abandonment of the government's request, there would be no resolution, something all four librarians regret. But not the fight.

Nocek: "Because the terrorists tried to scare us all, we should refuse to be scared. The best way to honor those who died on 9/11 is to support our freedoms. If we are quiet, we take away the very thing we are fighting for. "

Chase: "The NSL is catastrophic for the nation. For government to be viable, it cannot abuse its powers. It's just as important as the privacy of the voting booth."

Bailey: "This has been a year out of our lives. It was very scary, but I learned a lot. I would like people's awareness to be heightened and my fellow librarians not to be afraid."

Beeson: "This administration has repeatedly shown that it will hide behind the cloak of national security to silence its critics and cover up embarrassing facts. Every time the government invokes national security in defense of secrecy - as they've done most recently with NSA [National Security Agency] wiretapping - the American public should remember these four librarians."

Christian: "I view myself as a patriot. The people who invented this country knew we had to be vigilant to keep what they were fighting for: dignity, human rights and political rights."

He quoted one of those inventors, Benjamin Franklin: "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."

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