[Laborgreens] Ashcroft, Snoops and Gag Orders

[laborgreens@gp-us.org]

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Ashcroft, Snoops and Gag Orders The Secrets of
Surveillance

By ELAINE CASSEL

http://www.counterpunch.org/cassel05292004.html

Everyone knows by now (or should) that the Patriot Act
allows the FBI to conduct surveillance on Internet and
email usage. Using so-called National Security Letters
(NSLs), the FBI directs Internet Service Providers
(ISPs) to provide passwords and identifying information
that will allow the government to target people who are
plotting terrorism or who are otherwise potentially
dangerous to national security. I am sure that many of
you reading this (and I, likely) have the government in
our computers.

The same mechanism of NSLs is used to obtain
information from librarians, health care providers, and
business records of individuals and entities. The party
from whom the government demands information is
forbidden from telling the client that the FBI is being
provided information. And the target of the
investigation won't know about it until or if he or she
is arrested for crime or detained without a charge
(say, as a material witness).

Until now, we did not know much about how the
government goes about this procedure. Now we do. Thanks
to a suit filed by the American Civil Liberties Union
(ACLU) in New York in behalf of an unnamed ISP. The
government has tried mightily to keep the entire suit
under seal, but the federal judge has allowed the ACLU
to release some information about the case.

Following is a report on the case, with some
interesting heretofore unknown details. Never has the
ACLU needed your financial support more. Clearly, it is
the only thing standing between us and our fascist
government. Read the briefs and supporting documents in
the case.

"The American Civil Liberties Union (ACLU) yesterday
released more information about the heavily censored
legal challenge it is bringing against the government's
use of a controversial provision of the USA PATRIOT Act
that allows the FBI to obtain from businesses sensitive
personal information about their clients. Among the
documents unsealed today is a declaration by the ACLU's
anonymous client in the case, the president and sole
employee of an unnamed Internet Service Provider (ISP),
referred to only as "John Doe." John Doe is prohibited
by law from revealing his identity to the public, even
as he confronts the federal government over the very
section of the Patriot Act that forces him to remain
anonymous.

In his statement, Doe explains that his business
provides access to the Internet, email accounts and
space on the Web where people can post their own sites
or store electronic files. He says some of his clients
"are individuals and political associations that engage
in controversial political speech," and that some
"communicate anonymously or pseudonymously," which
allows them "to discuss embarrassing, sensitive or
controversial subjects without fear of retaliation or
reprisal."

Doe and the ACLU are asking the court to deem
unconstitutional the government's use of National
Security Letters (NSLs), which allow FBI agents to
demand, with no judicial oversight, personal
information about clients of Internet Service
Providers.

"I believe that the government may be abusing its power
by targeting people with unpopular views," Doe writes.
"I am challenging the constitutionality of the NSL
provision in an effort to protect all of my clients'
interests."

In a memorandum to the court, the ACLU wrote that the
statute allowing the broad use of National Security
Letters gives the FBI "unchecked authority" to require
businesses to reveal "a broad array of sensitive
information, including information about the First
Amendment activities of ordinary Americans who are not
suspected of any wrongdoing."

The memorandum continues: "The statute does not require
the FBI to seek judicial authorization before demanding
the disclosure of sensitive information, and it does
not specify any means by which a person served with an
NSL can challenge the NSLs validity before complying
with it. In other words, the FBI issues NSLs without
judicial oversight of any kind."

ACLU lawyers and their client are also disputing a
section of the law that prohibits an entity that
receives a National Security Letter request for
information from telling anyone about the request.
Ironically, this gag order is the same rule that
prohibits the ACLU and John Doe from talking about many
aspects of their case.

The ACLU challenge of the National Security Letters and
the gag rule has been wrapped in secrecy since it was
filed in early April this year. The civil liberties
organization has been locked in constant disagreements
with the government over how much can be revealed about
the case. The group was not even allowed to announce
the existence of the suit for over two weeks, and even
after negotiating the right to publicize the case, has
been subject to numerous restrictions on the kinds of
information it can disclose.

Numerous words, sentences and entire sections of the
documents related to the suit, which are posted on the
group's website, remain blacked out.

Assistant Attorney General for Legal Policy Daniel
Bryant defended the gag order last week at a House
Judiciary subcommittee hearing, saying it prevents
people from interrupting terrorism investigations. But
critics say the secrecy rule is designed to keep the
public in the dark about the government's invasion into
people's constitutionally protected privacy.

"It is particularly troubling," writes ACLU Executive
Director Anthony Romero in a statement to the court,
"that while the ACLU ... [has] been gagged from
discussing the NSL power, President Bush and
representatives of the FBI and Justice Department are
engaged in a public campaign in support of the Patriot
Act. The gag provision silences those who are most
likely to oppose the Patriot Act. [We] believe we have
the right to inform the public of a great deal of the
information the gag is suppressing."

In filings with the court, Both Romero and Doe
described the self-censorship they had been forced to
engage in when asked by others about the National
Security Letters in general or the case in particular.

"The government has now prohibited the disclosure of my
name and my company's name in connection with the
case," said Doe. "They have provided no further
clarification about what I can and cannot say." He says
that he has found it difficult to have normal
conversations. "[I] used to discuss topics related to
politics and current events, but now I feel wary when I
communicate ... I have steered clear of numerous topics
of conversation as I am afraid.... The gag has put me
in a very compromising situation, as I do not want to
be dishonest in my communications [words blacked out]
but also do not want to violate the gag."

Romero said that not only is the gag order affecting
how he and other staff at the ACLU can talk about the
case, but it is having an impact on the broader
activities of the organization, which has been actively
engaged in educating and organizing against the Patriot
Act since the law's inception in late 2001.

"[T]he scope of the gag in this case, and the refusal
of the government to clarify what is prohibited, is
intolerable," he writes. "The gag has severely
disrupted our ordinary course of business... More
importantly, the public and even members of Congress
are denied non- sensitive information essential to
public and legislative debate that is at the heart of
democratic self-governance."

Elaine Cassel practices law in Virginia and the
District of Columbia, teachers law and psychology, and
follows the Bush regime's dismantling of the
Constitution at Civil Liberties Watch. Her book, The
War on Civil Liberties: How Bush and Ashcroft Have
Dismantled the Bill of Rights, will be published by
Lawrence Hill this summer. She can be reached at:
ecassel1@cox.net

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<BODY style=3D"FONT-SIZE: 10pt; FONT-FAMILY: Arial; BACKGROUND-COLOR: #fffff=
f">Ashcroft, Snoops and Gag Orders The Secrets of<BR>Surveillance<BR><BR>By=20=
ELAINE CASSEL<BR><BR>http://www.counterpunch.org/cassel05292004.html<BR><BR>=
Everyone knows by now (or should) that the Patriot Act<BR>allows the FBI to=20=
conduct surveillance on Internet and<BR>email usage. Using so-called Nationa=
l Security Letters<BR>(NSLs), the FBI directs Internet Service Providers<BR>=
(ISPs) to provide passwords and identifying information<BR>that will allow t=
he government to target people who are<BR>plotting terrorism or who are othe=
rwise potentially<BR>dangerous to national security. I am sure that many of<=
BR>you reading this (and I, likely) have the government in<BR>our computers.=
<BR><BR>The same mechanism of NSLs is used to obtain<BR>information from lib=
rarians, health care providers, and<BR>business records of individuals and e=
ntities. The party<BR>from whom the government demands information is<BR>for=
bidden from telling the client that the FBI is being<BR>provided information=
. And the target of the<BR>investigation won't know about it until or if he=20=
or she<BR>is arrested for crime or detained without a charge<BR>(say, as a m=
aterial witness).<BR><BR>Until now, we did not know much about how the<BR>go=
vernment goes about this procedure. Now we do. Thanks<BR>to a suit filed by=20=
the American Civil Liberties Union<BR>(ACLU) in New York in behalf of an unn=
amed ISP. The<BR>government has tried mightily to keep the entire suit<BR>un=
der seal, but the federal judge has allowed the ACLU<BR>to release some info=
rmation about the case.<BR><BR>Following is a report on the case, with some<=
BR>interesting heretofore unknown details. Never has the<BR>ACLU needed your=
 financial support more. Clearly, it is<BR>the only thing standing between u=
s and our fascist<BR>government. Read the briefs and supporting documents in=
<BR>the case.<BR><BR>"The American Civil Liberties Union (ACLU) yesterday<BR=
>released more information about the heavily censored<BR>legal challenge it=20=
is bringing against the government's<BR>use of a controversial provision of=20=
the USA PATRIOT Act<BR>that allows the FBI to obtain from businesses sensiti=
ve<BR>personal information about their clients. Among the<BR>documents unsea=
led today is a declaration by the ACLU's<BR>anonymous client in the case, th=
e president and sole<BR>employee of an unnamed Internet Service Provider (IS=
P),<BR>referred to only as "John Doe." John Doe is prohibited<BR>by law from=
 revealing his identity to the public, even<BR>as he confronts the federal g=
overnment over the very<BR>section of the Patriot Act that forces him to rem=
ain<BR>anonymous.<BR><BR>In his statement, Doe explains that his business<BR=
>provides access to the Internet, email accounts and<BR>space on the Web whe=
re people can post their own sites<BR>or store electronic files. He says som=
e of his clients<BR>"are individuals and political associations that engage<=
BR>in controversial political speech," and that some<BR>"communicate anonymo=
usly or pseudonymously," which<BR>allows them "to discuss embarrassing, sens=
itive or<BR>controversial subjects without fear of retaliation or<BR>reprisa=
l."<BR><BR>Doe and the ACLU are asking the court to deem<BR>unconstitutional=
 the government's use of National<BR>Security Letters (NSLs), which allow FB=
I agents to<BR>demand, with no judicial oversight, personal<BR>information a=
bout clients of Internet Service<BR>Providers.<BR><BR>"I believe that the go=
vernment may be abusing its power<BR>by targeting people with unpopular view=
s," Doe writes.<BR>"I am challenging the constitutionality of the NSL<BR>pro=
vision in an effort to protect all of my clients'<BR>interests."<BR><BR>In a=
 memorandum to the court, the ACLU wrote that the<BR>statute allowing the br=
oad use of National Security<BR>Letters gives the FBI "unchecked authority"=20=
to require<BR>businesses to reveal "a broad array of sensitive<BR>informatio=
n, including information about the First<BR>Amendment activities of ordinary=
 Americans who are not<BR>suspected of any wrongdoing."<BR><BR>The memorandu=
m continues: "The statute does not require<BR>the FBI to seek judicial autho=
rization before demanding<BR>the disclosure of sensitive information, and it=
 does<BR>not specify any means by which a person served with an<BR>NSL can c=
hallenge the NSLs validity before complying<BR>with it. In other words, the=20=
FBI issues NSLs without<BR>judicial oversight of any kind."<BR><BR>ACLU lawy=
ers and their client are also disputing a<BR>section of the law that prohibi=
ts an entity that<BR>receives a National Security Letter request for<BR>info=
rmation from telling anyone about the request.<BR>Ironically, this gag order=
 is the same rule that<BR>prohibits the ACLU and John Doe from talking about=
 many<BR>aspects of their case.<BR><BR>The ACLU challenge of the National Se=
curity Letters and<BR>the gag rule has been wrapped in secrecy since it was<=
BR>filed in early April this year. The civil liberties<BR>organization has b=
een locked in constant disagreements<BR>with the government over how much ca=
n be revealed about<BR>the case. The group was not even allowed to announce<=
BR>the existence of the suit for over two weeks, and even<BR>after negotiati=
ng the right to publicize the case, has<BR>been subject to numerous restrict=
ions on the kinds of<BR>information it can disclose.<BR><BR>Numerous words,=20=
sentences and entire sections of the<BR>documents related to the suit, which=
 are posted on the<BR>group's website, remain blacked out.<BR><BR>Assistant=20=
Attorney General for Legal Policy Daniel<BR>Bryant defended the gag order la=
st week at a House<BR>Judiciary subcommittee hearing, saying it prevents<BR>=
people from interrupting terrorism investigations. But<BR>critics say the se=
crecy rule is designed to keep the<BR>public in the dark about the governmen=
t's invasion into<BR>people's constitutionally protected privacy.<BR><BR>"It=
 is particularly troubling," writes ACLU Executive<BR>Director Anthony Romer=
o in a statement to the court,<BR>"that while the ACLU ... [has] been gagged=
 from<BR>discussing the NSL power, President Bush and<BR>representatives of=20=
the FBI and Justice Department are<BR>engaged in a public campaign in suppor=
t of the Patriot<BR>Act. The gag provision silences those who are most<BR>li=
kely to oppose the Patriot Act. [We] believe we have<BR>the right to inform=20=
the public of a great deal of the<BR>information the gag is suppressing."<BR=
><BR>In filings with the court, Both Romero and Doe<BR>described the self-ce=
nsorship they had been forced to<BR>engage in when asked by others about the=
 National<BR>Security Letters in general or the case in particular.<BR><BR>"=
The government has now prohibited the disclosure of my<BR>name and my compan=
y's name in connection with the<BR>case," said Doe. "They have provided no f=
urther<BR>clarification about what I can and cannot say." He says<BR>that he=
 has found it difficult to have normal<BR>conversations. "[I] used to discus=
s topics related to<BR>politics and current events, but now I feel wary when=
 I<BR>communicate ... I have steered clear of numerous topics<BR>of conversa=
tion as I am afraid.... The gag has put me<BR>in a very compromising situati=
on, as I do not want to<BR>be dishonest in my communications [words blacked=20=
out]<BR>but also do not want to violate the gag."<BR><BR>Romero said that no=
t only is the gag order affecting<BR>how he and other staff at the ACLU can=20=
talk about the<BR>case, but it is having an impact on the broader<BR>activit=
ies of the organization, which has been actively<BR>engaged in educating and=
 organizing against the Patriot<BR>Act since the law's inception in late 200=
1.<BR><BR>"[T]he scope of the gag in this case, and the refusal<BR>of the go=
vernment to clarify what is prohibited, is<BR>intolerable," he writes. "The=20=
gag has severely<BR>disrupted our ordinary course of business... More<BR>imp=
ortantly, the public and even members of Congress<BR>are denied non- sensiti=
ve information essential to<BR>public and legislative debate that is at the=20=
heart of<BR>democratic self-governance."<BR><BR>Elaine Cassel practices law=20=
in Virginia and the<BR>District of Columbia, teachers law and psychology, an=
d<BR>follows the Bush regime's dismantling of the<BR>Constitution at Civil L=
iberties Watch. Her book, The<BR>War on Civil Liberties: How Bush and Ashcro=
ft Have<BR>Dismantled the Bill of Rights, will be published by<BR>Lawrence H=
ill this summer. She can be reached at:<BR>ecassel1@cox.net<BR></BODY></HTML=
>

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