Tuesday, March 27, 2007

NSLs should be abolished

Nothing really surprising here. Just another doc for the growing pile of evidence that the FBI regularly lies to obtain secret surveillance warrants. This latest revelation has allegedly resulted in tightened controls on obtaining the warrants but considering that's what they told us when they allowed the program to go forward in the first place, I'm not betting the farm that much will change. It is what it is, and I certainly won't ever approve of secret domestic surveillance no matter how many rules they make to "safeguard" our privacy.

But this does provide an opportunity to revisit a related piece that I didn't get to while I was working last week, that being an op-ed by someone who has received a NSL from the FBI. It starts like this.
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.
He fought the NSL in court and never released the information. The FBI eventually decided it didn't really need it after all and dropped the request but not the gag order which still remains in effect.
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.
The author goes on to point out that with the gag orders, citizens like himself who had legitimate misgivings about the abuse of the NSLs were prevented from communicating their concerns to those who had an ability to prevent the abuse, for instance his Congressmen at the time the Patriot Act was being reauthorized. As the FBI's breaches of proper protocol continue to be revealed, one would have to agree.

Today's article in the WaPo references expert agreement that "Congress, the courts and the Justice Department share the blame for not conducting more aggressive oversight of FBI agents." One wonders how they were expected to exercise such oversight when the whole program has, and continues to operate under such unwarranted secrecy. As the op-ed author notes, "At some point -- a point we passed long ago -- the secrecy itself becomes a threat to our democracy."

In fact, isn't compelling a private citizen, under the threat of penalty, to lie to even his own family about the government's conduct a defining aspect of a police state? I remind you again. Fascism doesn't arrive overnight. It creeps in by degrees. The secret warrants clearly need better controls but the NSL program takes us one giant step closer to a totalitarian government and should be shut down completely - before it's too late to save democracy as we know it.

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