A caller to the show last night seemed unconcerned with the government snooping into every aspect of his personal life. “I’ve got nothing to hide,” he told me, insisting that secret wiretaps and other intrusions were a small price to pay during “a time of war.” Of course the Bush administration and its strongest backers expect the war on terrorism — or “The Long War” as some administration officials have frighteningly called it — to go on indefinitely, resulting in an indefinite suspension of some of our most basic personal liberties… rights like habeas corpus, which actually predates our Constitution.
Well, for those who are less sanguine than my caller about our ever eroding civil liberties, an anonymous guest column in this week’s Washington Post is a disturbing illustration of how our government’s expanding program of secret domestic spying intrudes on the personal lives of average, law abiding citizens.
Three years ago, I received a national security letter (NSL) in my capacity as the president of a small Internet access and consulting business. The letter ordered me to provide sensitive information about one of my clients. There was no indication that a judge had reviewed or approved the letter, and it turned out that none had. The letter came with a gag provision that prohibited me from telling anyone, including my client, that the FBI was seeking this information. Based on the context of the demand — a context that the FBI still won’t let me discuss publicly — I suspected that the FBI was abusing its power and that the letter sought information to which the FBI was not entitled.
Rather than turn over the information, I contacted lawyers at the American Civil Liberties Union, and in April 2004 I filed a lawsuit challenging the constitutionality of the NSL power. I never released the information the FBI sought, and last November the FBI decided that it no longer needs the information anyway. But the FBI still hasn’t abandoned the gag order that prevents me from disclosing my experience and concerns with the law or the national security letter that was served on my company. In fact, the government will return to court in the next few weeks to defend the gag orders that are imposed on recipients of these letters.
Living under the gag order has been stressful and surreal. Under the threat of criminal prosecution, I must hide all aspects of my involvement in the case — including the mere fact that I received an NSL — from my colleagues, my family and my friends. When I meet with my attorneys I cannot tell my girlfriend where I am going or where I have been. I hide any papers related to the case in a place where she will not look. When clients and friends ask me whether I am the one challenging the constitutionality of the NSL statute, I have no choice but to look them in the eye and lie.
I resent being conscripted as a secret informer for the government and being made to mislead those who are close to me, especially because I have doubts about the legitimacy of the underlying investigation.
[…] I recognize that there may sometimes be a need for secrecy in certain national security investigations. But I’ve now been under a broad gag order for three years, and other NSL recipients have been silenced for even longer. At some point — a point we passed long ago — the secrecy itself becomes a threat to our democracy.
The NSL received by the author was only one of more than 140,000 the FBI issued between 2003 and 2005, without prior judicial approval or showing of probable cause, seeking sensitive, private information about U.S. citizens and residents.
If you support this and other similar provisions of the USA Patriot Act, then you must support the notion that the author of this column, should his identity be revealed, be criminally prosecuted and imprisoned for speaking publicly about his experiences under the law. And if you support that, then I’m not quite sure what it is about America that you are hoping to defend. Or, as Benjamin Franklin more eloquently put it: “Those who would give up Essential Liberty to purchase a little Temporary Safety deserve neither Liberty nor Safety.”