The Rights of the People (61 page)

50.
United States v. Battle
, CR 02-399-JO (D. Or.), Government’s sentencing memorandum, Nov. 19, 2003. It wasn’t the first target practice, according to the government. They had been to indoor firing ranges and rural areas in the spring and summer of 2001 as well.

51.
Ron Gluckman, e-mail to author, Apr. 27, 2006.

52.
Battle
, sentencing memorandum.

53.
Battle
, motion to suppress foreign intelligence surveillance evidence, Aug. 1, 2003.

54.
Battle
, motion to suppress, pp. 26–27.

55.
Charles Gorder memo to author.

56.
Gorder, interview with author, Feb. 15, 2006.

57.
Battle
, motion to suppress, p. 30.

58.
Sharing FISA intelligence with criminal investigators was less free during the period of investigation than now. Although the Patriot Act had effectively removed the wall between them, the Foreign Intelligence Surveillance Court had issued an opinion requiring that any discussion between the intelligence and criminal sides of the FBI be monitored by a high-ranking Justice Department official.
In Re: All Matters Submitted to the Foreign Intelligence Surveillance Court
, May 17, 2002. This was reversed by the Foreign Intelligence Surveillance Court of Review, in
In Re: Sealed Case No. 02-001
, Nov. 18, 2002, issued after the Portland Seven surveillance had been completed.

59.
18 U.S.C. § 2384: “If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down or destroy by force the Government of the United States, or to levy war against them … they shall be fined under this title or imprisoned not more than twenty years or both.” Defense lawyers argued, in a motion to dismiss, that the act of war had to occur in territory under U.S. jurisdiction. In rebuttal, the government countered that the geographical limitation applied to the conspiracy, not to the contemplated conduct.
Battle
, memorandum in support of defendants’ motion to dismiss the indictment, May 2, 2003; opposition of the United States to defendants’ motion to dismiss the indictment, June 6, 2003.

  
1.
For a detailed matrix of governmental powers to conduct searches and their codification in law, see “Current Legal Standards for Access to Papers, Records, and Communications,” Center for Democracy and Technology,
http://www.cdt.org/wiretap/govaccess/govaccesschart-11x17.pdf
.

  
2.
Letter to Kenneth Sutton from Michael J. Wolf, special agent in charge, New Haven Division, FBI, May 19, 2005. Sutton, the systems and telecommunication manager of Library Connection, had told the FBI to deliver the letter to George Christian, the executive director.

  
3.
U.S. District Court Judge Victor Marrero, 334 F. Supp 2d 471 S.D. N.Y. (2004). After the Patriot Act was revised in 2005, the Second Circuit sent the case back for reconsideration, and again, on Sept. 6, 2007, Marrero ruled the gag order in violation of the First Amendment. 04 Civ. 2614 (S.D. NY 2007). He was partly upheld by the Second Circuit in 2008,
Doe v. Mukasey
07-4943-cv (2nd Cir. 2008). The three-judge panel found the revised nondisclosure provision, which permitted a recipient to go to court to prove the gag order unlawful, an unconstitutional prior restraint of speech under the First Amendment, and the court shifted the burden of proof to the government to show in court why national security or an investigation would be harmed by disclosure. The Obama administration continued to defend the gag provision, then in 2010 settled the case by allowing the recipient, Nicholas Merrill, to identify himself.

  
4.
“State Privacy Laws Regarding Library Records,” American Library Association,
http://www.ala.org/oif/stateprivacylaws
.

  
5.
18 U.S.C. § 2709(c). Gag orders appear in all sections of federal law permitting the use of National Security Letters for obtaining various records. Although no
penalty for violation was mentioned in the original Patriot Act, its renewal and amendment added it to 18 U.S.C. § 1510, providing that anyone who “knowingly and with the intent to obstruct an investigation or judicial proceeding violates such prohibitions or requirements applicable by law to such person shall be imprisoned for not more than five years, fined under this title, or both.”

  
6.
Besides Christian, the three executive board members were Peter Chase, director of the Plainville Public Library; Barbara Bailey, director of the library in Glastonbury; and Janet Nocek, director of the Portland Library.

  
7.
18 U.S.C, § 1510. See also Charles Doyle,
CRS Report for Congress: National Security Letters in Foreign Intelligence Investigations: Legal Background and Recent Amendments
, Congressional Research Service, March 20, 2007,
http://www.fas.org/sgp/crs/intel/RL33320.pdf
.

  
8.
Alison Leigh Cowan, “Librarians Must Stay Silent in Patriot Act Suit, Court Says,”
New York Times
, Sept. 21, 2005, p. B2.

  
9.
John Doe et al. v. Alberto Gonzales
, 3:05-cv-1256 (JCH), (D. Conn. 2005), “Ruling on Plaintiffs’ Motion for Preliminary Injunction,” pp. 17, 23, 26. The ruling struck down 18 U.S.C. § 2709(c), but was stayed on appeal. Justice Ginsburg refused to vacate the stay, and the Appeals Court then dismissed the government’s appeal as moot, given the Justice Department’s permission for the library consortium to reveal its identity.
John Doe v. Gonzales
, 05-0570-cv(L), 05-4896-cv(CON) (2nd Cir. 2006).

10.
Chase interview by Ray Hardman on
Front and Center
, CPTV, taped Oct. 4, 2006, aired Jan. 5, 2007.

11.
Eric Lichtblau, “Libraries Say Yes, Officials Do Quiz Them About Users,”
New York Times
, June 20, 2005, p. A11.

12.
It is the League of Women Voters.

13.
Only in a narrow technical sense were administration officials’ statements correct: They were responding to concerns that Section 215 of the Patriot Act, which authorizes FISA warrants for “any tangible things (including books, records, papers, documents, and other items),” would be used against libraries, and apparently it had not been. They did not volunteer the fact that National Security Letters had been used instead. Patriot Act, Public Law 107-56, Sec. 215, amending 50 U.S.C. 1851 § 501.

14.
O’Connor interview by Ray Hardman on
Front and Center
, CPTV, taped Oct. 4, 2006, broadcast Jan. 5, 2007.

15.
The IP addresses are made anonymous after nine months, and cookies in Google’s search-engine logs are made anonymous after eighteen months. “Why are search engine logs kept before being anonymized?” Google Privacy Center,
http://www.google.com/intl/en/privacy_faq.html#toc-store
.

16.
“Resolution on the Retention of Library Usage Records,” American Library Association, June 28, 2006,
http://www.ala.org/Template.cfm?Section=ifresolutions&Template=/ContentManagement/
ContentDisplay.cfm&ContentID=135888
.

17.
47 U.S.C. § 1002 (a), as amended by the Communications Assistance for Law Enforcement Act of 1994, now 47 U.S.C. §§ 1001–21.

18.
American Council on Education v. Federal Communications Commission
, 451 F.3d 226 (D.C. Cir. 2006).

19.
12 U.S.C. 1829b (d). The act’s constitutionality was upheld in
California Bankers Assn. v. Shultz
, 416 U.S. 21 (1974).

20.
State legislatures can fall victim to the same syndrome. Massachusetts hastily passed a law in the fall of 2001 requiring Internet providers to turn over e-mails in response to administrative orders. John Laidler, “After Attacks, Senate Acts Swiftly,”
Boston Globe
, Oct. 28, 2001, p. 5. The ACLU has filed complaints with most states’ public utilities commissions over telecom companies’ suspected disclosure of customer records to the government. See
http://www.aclu.org/puc-spying-map
. But it is mostly a federal problem; little real-time electronic surveillance is done by states. “Forty-six states or territories have state wiretap laws, authorizing state and local police to intercept the content of voice or email communications, but in the average year, half of them make little or no use of those laws.” Jim Dempsey, e-mail to author, June 8, 2007. Illinois did only one in 2009, and police did none in Virginia, Texas, Ohio, Louisiana, Washington, and smaller states. The leaders were California (586 wiretaps), New York (424), New Jersey (206), Colorado (115), and Florida (78). See http://www.uscourts.gov/wiretap09/Table1.pdf.

21.
United States v. United States District Court
, 407 U.S. 297 (1972). Data on time, cited by Douglas, are drawn from an investigation by Senator Edward Kennedy. In the case, one man was charged with bombing a CIA office in Ann Arbor, Michigan, the other two with conspiring to attack government facilities. Powell wrote the unanimous opinion. Rehnquist did not participate.

22.
Nicholas M. Horrock, “National Security Agency Reported Eavesdropping on Most Private Cables,”
New York Times
, Aug. 31, 1975, p. 1.

23.
United States v. Miller
, 425 U.S. 435 (1976). Mitch Miller was convicted of having an unregistered still and 175 gallons of whiskey, discovered during a fire at his warehouse, and of defrauding the government of taxes. Unlike documents in the nineteenth-century case
Boyd v. United States
, 116 U.S. 616, 622 (1886), in which the Court ruled against “compulsory production of a man’s private papers to establish a criminal charge against him,” the Court ruled in
Miller
that instruments held by a bank “are not respondent’s ‘private papers,’ ” and that he “can assert neither ownership nor possession.” Majority opinion, 7–2, by Powell.

24.
Smith v. Maryland
, 442 U.S. 735 (1979). After a Baltimore woman was robbed and gave police a description of the thief’s car, she received threatening phone calls from the man. In one call, he told her to step onto her porch. When she saw the car driving past her house, she reported the plate number to police, who traced it to Michael Lee Smith and—without a warrant or court order—asked the phone company to put a pen register on his phone, which captured a call to her number. On that basis, police obtained a search warrant of his home and put him in a lineup, where the victim identified him. Majority opinion, 5–3, by Blackmun.

25.
Office of the Inspector General,
A Review of the Federal Bureau of Investigation’s Use of National Security Letters
, Department of Justice, March 2007.

26.
“Important Information Every Schwab Account Holder Needs to Know,” Charles Schwab & Co., Inc., June 2007.

27.
15 U.S.C. § 1681.

28.
12 U.S.C. § 3414.

29.
18 U.S.C. § 2709.

30.
50 U.S.C. § 436.

31.
The number of letters, as opposed to requests contained in letters, rose rapidly after the Patriot Act was passed in 2001. One letter may contain many requests, as in 2004, when nine letters requested information on 11,000 phone numbers, thereby causing the jump in figures for that year. Statistics, legal history, and data on FBI abuses derive from Office of the Inspector General,
A Review of the Federal Bureau of Investigation’s Use of National Security Letters
, Department of Justice, March 2007, and Office of the Inspector General,
Report to Congress on Implementation of Section 1001 of the USA Patriot Act
, Department of Justice, Feb. 2010. After investigators found abuses, the FBI pulled back somewhat, issuing 16,804 in 2007 and 24,744 in 2008. Ronald Weich, assistant attorney general, letter to chairs of Senate and House Committees on Judiciary and Intelligence, May 14, 2009.

32.
Mark Mazzetti and Eric Lichtblau, “Pentagon Review Faults Demands for Bank Records,”
New York Times
, Oct. 14, 2007, p. A30. Based on heavily censored documents obtained by the ACLU under the FOIA. See
http://www.aclu.org/safefree/nationalsecurityletters/32145
prs20071014.html
.

33.
Patriot Act, § 505.

34.
Additional officials are authorized under the Fair Credit Reporting Act, 15 U.S.C. § 1681(v), which empowers supervisory officials of an agency investigating or analyzing international terrorism, and the National Security Act, 50 U.S.C. § 436, empowering officials down to the level of assistant secretary or assistant director of agencies with employees with access to classified material.

35.
“U.S. persons” also include U.S. corporations and associations containing a substantial membership of citizens or lawful permanent residents. 50 U.S.C. § 1801 (i).

36.
The reason for the inaccurate FBI records was that the computer default for NSLs under the Electronic Communications Privacy and Right to Financial Privacy Acts was set to “non-U.S. person,” meaning that if no information was entered, the NSL’s target was recorded as a non-U.S. person. Twenty-six of 212 approvals found U.S. persons listed as non-U.S. persons. The default has since been changed to U.S. person. Office of Inspector General,
A Review of the Federal Bureau of Investigation’s Use of National Security Letters
, p. 35.

37.
Executive Order 12333, § 2.4 of Dec. 4, 1981.

38.
Patriot Act, § 358(g), amending the Fair Credit Reporting Act.

39.
OIG report,
National Security Letters
, p. 113 n. 150.

40.
OIG report,
National Security Letters
, p. 114 nn. 151, 152.

41.
James Bamford,
The Shadow Factory
(New York: Doubleday, 2008), pp. 19–20.

42.
“Summary of the White House Review of the December 25, 2009 Attempted Terrorist Attack,” White House, Jan. 8, 2010.

43.
Lawrence Wright, “The Spymaster,”
The New Yorker
, Jan. 21, 2008, p. 55.

44.
Transactional Records Access Clearinghouse of Syracuse U., “Criminal Terrorism Enforcement in the United States During the Five Years Since the 9/11/01 Attacks,”
http://www.trac.syr.edu/tracreports/terrorism/169/
and “Who Is a Terrorist?”
http://www.trac.syr.edu:80/tracreports/terrorism/215/
. The turndown rate jumped from 31 percent in fiscal year 2002 to 73 percent in fiscal year 2008.

45.
Dina Temple-Raston, “Terrorism Case Shows Range of Investigators’ Tools,” NPR, Oct. 3, 2009.

46.
Report from the Field: USA Patriot Act at Work
, U.S. Dept. of Justice, March 2004, p. 7.

47.
Ibid., p. 6.

48.
Glenn A. Fine, Gordon S. Hedell, Patricia A. Lewis, George Ellard, and Roslyn A. Mazer, Inspectors General of the Dept. of Justice, Dept. of Defense, CIA, NSA, and Director of National Intelligence, “Unclassified Report on the President’s Surveillance Program,” July 10, 2009, p. 9.

49.
Jack Goldsmith,
The Terror Presidency
(New York: W. W. Norton, 2007), p. 180.

50.
Jane Mayer,
The Dark Side
(New York: Doubleday, 2008), pp. 68–69.

51.
Goldsmith,
The Terror Presidency
, p. 181.

52.
Deb Reichmann, “Bush Calls for Expansion of Spy Law,” AP, Sept. 19, 2007.

53.
James Risen and Eric Lichtblau, “Bush Lets U.S. Spy on Callers Without Courts,”
New York Times
, Dec. 16, 2005, p. A1; Risen and Lichtblau, “Spying Program Snared U.S. Calls,”
New York Times
, Dec. 21, 2005, p. A1. See also James Risen,
State of War
(New York: Free Press, 2006), and Eric Lichtblau,
Bush’s Law: The Remaking of American Justice
(New York: Pantheon, 2008).

54.
Eric Lichtblau, James Risen, and Scott Shane, “Wider Spying Fuels Aid Plan for Telecoms,”
New York Times
, Dec. 16, 2007, p. A1.

55.
Bamford,
The Shadow Factory
, pp. 189–94.

56.
Lichtblau and Risen, “Spy Agency Mined Vast Data Trove, Officials Report,”
New York Times
, Dec. 24, 2005, p. A1.