Federal authorities paid no attention to the men until well after most of them had returned from their abortive adventure. One day, a vigilant landlord arrived at an FBI office carrying a bag of trash containing items that looked suspicious: an expired Jordanian passport (al-Saoub’s), writings in Arabic, and a martyr’s will about dying in Afghanistan. The investigation began in earnest.
Khalid Mostafa, an FBI informant, was inserted by the government into the Muslim community, where he attended services at a mosque and befriended Ford and Battle, recording conversations that he “repeatedly steered … to topics involving illegal arms purchases and violence,” according to the defense.53 It is possible, but has never been confirmed, that warrantless surveillance by the National Security Agency was used. What is known is that both FISA warrants and ordinary Title III criminal warrants were combined in a potent system of monitoring.
According to Charles Gorder, the assistant U.S. attorney who prosecuted the case, FISA was used to tap telephones and to place a bug in Battle’s apartment, which his lawyer told the court captured “highly personal” family conversations unrelated to the investigation.54 Other information came by traditional means: Travel records were obtained through grand jury subpoenas, Gorder said, and “e-mails were obtained through criminal search warrants after the fact.” The e-mail addresses were found when Battle naïvely gave his computer to Mostafa for safekeeping, and Mostafa turned it over to the FBI.
This interaction among various methods, and especially the flexible intelligence-gathering mechanisms of FISA, reduced one significant source of tension that often runs through such cases: While the FBI was gathering enough evidence to prosecute, the suspects were on the loose, possibly poised to attack. Battle had been recorded by the informant as toying with the notion of assaulting a synagogue or a Jewish school to retaliate for Israeli attacks on Palestinians. “If every time [the Israelis] hurt or harm a Muslim over there,” Battle said, “you go into that synagogue and hurt one over here, OK, they’re gonna say, Wait a minute, we gotta stop, we’re seeing a connection here.”55
So the government wanted close monitoring, and FISA was the instrument, used “to keep investigators apprised of what these guys were doing,” Gorder explained. “There was a point where we had enough evidence to arrest Battle,” said the prosecutor, “but we didn’t have enough evidence to arrest” the others, who would “undoubtedly scatter or attempt to cover up their crimes” once Battle was seized. “It was important to keep track of Battle so we could be comfortable in waiting to arrest him.… If he had gotten the word to start some domestic attack, we would have had a good chance of knowing about it in advance.”56
But why use FISA? There was “no reason why this case could not have been investigated like any other criminal case,” wrote Kristen Winemiller in a motion seeking to have the FISA recordings suppressed and FISA struck down as unconstitutional. Using FISA was “the simplest way to circumvent safeguards the United States Constitution provides its citizens,” she argued.57
That made FISA a handy tool. Without it, the surveillance of Battle and Ford would have been less comprehensive. To get an ordinary wiretap warrant under Title III of the criminal code, Gorder explained, “you have to show probable cause that a telephone line is being used for criminal activity.” For example, “In a traditional narcotics wiretap, you normally have to show that drug dealers have discussed their business over that particular phone line in the recent past.”
Even if that had been possible in the Portland case, investigators didn’t want to be restricted to a particular phone. They might have obtained roving wiretaps, which have been legal since the mid-1980s to monitor any phone that a suspect is using, but those “require showing that the guy is changing phones to evade detection,” Gorder said. With Title III warrants, “it might have been possible to cover some of the facilities being used by these guys, but not all.” By facilities, he evidently included Battle’s apartment.
A FISA warrant has a looser standard—or, as Gorder preferred to say, “a different standard.” To monitor a U.S. person—a citizen or resident alien—you need “probable cause to believe the subject is an agent of a foreign power, and he’s committing some crime as part of being an agent of a foreign power. Then you can get an order to surveil all specific facilities that he’s using. You don’t have to tie it to a particular phone.” That was convenient, but it was not clear what “foreign power” the Portland group represented, since they never contacted the Taliban, al-Qaeda, or any other such entity. The basis for the FISA order remained classified.
Information collected under FISA typically stays in the shadows, serving as a kind of electronic tipster, a lead to other facts that can be gathered through conventional warrants and subpoenas. That has been facilitated by the Patriot Act’s removal of the wall between those gathering intelligence and those investigating crime. “The FBI could have done FISA on Battle or Ford pre–Patriot Act,” Gorder said, “but what they were finding out they could not have shared with us, when we were in the middle of conducting a criminal investigation.”58
Then prosecutors had to decide whether to keep the FISA phone and apartment recordings secret or use them in a trial. “Most evidence was developed through more traditional investigative techniques,” he said. “Although we probably would have used some of the phone calls that were intercepted through FISA, it was more important in terms of intelligence.” Introducing FISA “intelligence” material into evidence means declassifying it, often a trade-off between strengthening a prosecution and disclosing surveillance methods. It requires a high-level decision, and “we got the attorney general’s approval in the Portland Seven case,” Gorder said.
Had they gone to trial, the defendants’ lawyers would have argued that they intended merely to render humanitarian assistance during the war. But on the eve of oral arguments on the suppression motion challenging the constitutionality of FISA, the government offered a deal, probably to avoid that litigation. Ford’s parents were divided on whether he should take it. “I wanted them to go to trial, but I got overruled by his mother,” said Kent.
“He wanted to go to trial,” Sandra said of her son. “His lawyer did a poll of the jury pool in the tri-county area, and the majority believed that if you’re Muslim you’re a terrorist, and the government was asking for life in prison. We pressured him to plead guilty. We’re poor. He’s a young black man.”
Other families had similar reactions, so the men pleaded guilty to conspiring to levy war against the United States, a law dusted off from the Civil War.59 The sentences ranged from seven to eighteen years.
Gorder was satisfied with the exercise in prevention. “What were they going to do next?” he asked. “Whether Battle was blowing smoke or not, he was talking about blowing up synagogues and Jewish schools. Do you let him wander around the streets of Portland?”
CHAPTER SIX
The Law Falls Silent
For laws are silent when arms are raised, and do not expect themselves to be waited for, when he who waits will have to suffer an undeserved penalty before he can exact a merited punishment.
—Cicero
THE CONTINUUM OF INTRUSION
GEORGE CHRISTIAN found himself very far from the Constitution, in a black hole of liberty where no judge presided, and where all three branches of government had allowed the rule of law, the Bill of Rights especially, to stand silently aside.1
It was July 13, 2005. Christian looked at the piece of paper served by an agent—a simple, one-page document on FBI stationery, known as a National Security Letter—and knew instinctively that he had to fight it. Unlike most of his fellow citizens, he displayed a red-blooded American revulsion when the government trespassed outside the Constitution. Practically alone among other Americans who had received nearly 150,000 orders through such letters since 9/11, he resisted.
What he held in his hands was neither an ordinary warrant signed by a judge nor a subpoena issued by a grand jury but merely an adm
inistrative demand from the head of the FBI’s New Haven office. The document required “any and all subscriber information, billing information and access logs of any person or entity related” to a computer carrying the Internet Protocol (IP) address 216.47.180.118 between 4 and 4:45 p.m. on the previous February 15. Moreover, he was prohibited “from disclosing to any person that the FBI has sought or obtained access to information or records under these provisions.”2
Christian was executive director of Library Connection, a consortium of twenty-seven public libraries in the Hartford area, and he was well prepared. Because librarians had been braced for some kind of intrusion since the Patriot Act, his staff had been told that only he could release information. And since the FBI had alerted an employee by phone that the letter was coming, he’d had a chance to contact an attorney at the University of Connecticut School of Law, who had assigned a law student to do some research.
“I’d never heard the term ‘National Security Letter,’ ” Christian remarked, and added wryly, “Sounds pretty important.” Indeed it was, but as the student quickly learned, the device had already been struck down as unconstitutional by federal district court judge Victor Marrero in New York, who ruled in favor of an unnamed Internet provider’s challenge; the government was appealing.3 Christian also knew that Connecticut was one of forty-eight states with laws requiring libraries to protect clients’ privacy,4 a mission he embraced passionately. “Free public libraries exist in this country to promote democracy by allowing the public to inform itself on the issues of the day,” he declared later, when he regained his freedom to speak.
Furthermore, he was convinced that the gag order violated the right to free speech under the First Amendment, as Judge Marrero had found. And so he decided to fight.
The FBI had been led to Christian’s door by an anonymous e-mail warning of a terrorist threat, according to the U.S. Attorney for Connecticut, Kevin J. O’Connor. The authorities wanted to know who had sent it. They first contacted the company that had sold the IP address, and that firm referred them to the purchaser, Kenneth Sutton, the technical chief at Library Connection, which provides the libraries with Internet access. Sutton sent the agents to Christian, the only one authorized to release records.
Since the FBI was looking for the name of a person, probably a library patron who had walked in off the street, the search would have to probe many names. The IP address cited by the NSL could not be narrowed down to one computer, only to the router of a certain library, serving multiple computers. “There was no way of identifying a specific computer at the library,” Christian explained. To discover the e-mailer, then, the FBI “would be forced to go to the library and find out who was using every machine that day,” he noted. That would sweep a lot of innocent people onto the government’s radar.
An FBI request for information to help catch terrorists, and possibly foil a plot, would not strike most Americans as anything out of line, and certainly not something to litigate ponderously through the courts while the culprits might be preparing an attack. Such “exigent circumstances,” as they’re called by laws permitting shortcuts, excuse warrantless interventions in the face of imminent danger. The National Security Letter is such a tool, quickly and easily issued by the head agent of any FBI field office.
But the FBI seemed in no hurry here. A full five months had passed since the suspicious e-mail had been sent. The National Security Letter addressed to Sutton was dated May 19, nearly two months before the FBI had gotten around to calling him. And not until ten days after that conversation had agents finally bothered to serve the letter on Christian. This was hardly being treated as an emergency, Christian observed, “so we weren’t worried that we were aiding and abetting some terrorist plot” by contesting the demand.
His chief worry was the gag order.5 Until the Patriot Act was revised the following year to permit consultation with an attorney, it wasn’t clear whether someone served could even call a lawyer, much less notify supervisors or colleagues. This imposed a paralysis that distorted the normal practices of good governance, which obligated Christian to inform the entire board of his intention to fight. On the one hand, he couldn’t make such a momentous decision alone; on the other, telling the board might expose him to prosecution. So, he sought sanctuary in middle ground. “I decided, if we’re going to take on the attorney general of the United States, I had to consult with the three other members of the executive committee, which has the power to take action.”6
It was a gamble. Unlike most gag orders, which are issued by judges against lawyers during trials and can be appealed, this broke an American tradition by taking the form of a lifelong, blanket prohibition framed in absolute language, with no court involvement. It was modified by a later revision to the Patriot Act, which gave with one hand and took away with the other; it permitted a court challenge to the letter itself, and to the gag order once a year, but required a judge to defer to the government’s determination that disclosure would endanger national security, diplomatic relations, an ongoing investigation, or personal safety—thereby eliminating judicial discretion, fact-finding, and analysis. Moreover, where no penalty had existed in the original statute, the revision added a fine and five years in prison for violating the gag order, and contempt of court for failing to provide the information demanded.7
At the time, Christian couldn’t be sure what punishment he might face if he spoke out, but he thought he was taking a chance even by consulting the executive committee, which approved the lawsuit and agreed to be represented by the American Civil Liberties Union.
Christian still felt professionally compromised. “My job is to manage a corporation owned and entirely funded by its participating member libraries,” he said. “I need to maintain their confidence and trust.” Although the small executive committee gave him full support, it went against his grain to keep secret the fact that an NSL had been served, that the organization was resisting, and “that we were committing the corporation to a lawsuit against the attorney general of the United States. These were all issues that should have been discussed and voted on by the full board.” The gag order “impacted my personal and professional relationships by placing me in uncomfortable circumstances where I couldn’t be completely open and honest.” That is how intrusively government can reach into private institutions.
To avoid revealing Library Connection as the plaintiff, the government barred Christian and his three colleagues from the federal courthouse in Bridgeport where the first hearing on their lawsuit was held. Instead, they were escorted through two security levels to a locked and guarded room in a federal building sixty miles away in Hartford, where they watched on closed-circuit television. “We were plaintiffs, but we were treated like criminals,” remarked one of the members, Barbara Bailey, a library director in Glastonbury.
Happily for democracy, censors are rarely perfect, and thanks to a chance episode of government sloppiness, more has been learned about this National Security Letter than any other. When papers were filed in the lawsuit, the plaintiff was disguised with the pseudonym “John Doe,” but when a list of pending cases was posted on the court’s Web site, the real name accidentally appeared, there to be found by an alert New York Times reporter as “Library Connection Inc. v. Attorney General.”8 Alone among the multitudes of National Security Letters served secretly on individuals and companies, therefore, this one jumped into view from the shadows of post-9/11 surveillance.
Three months after the NSL was issued, federal judge Janet C. Hall rejected the government’s speculation that releasing the recipient’s name would harm national security investigations in the case. She found the law’s blanket secrecy provision “overbroad,” in failing to require “any showing that each piece of information, if disclosed, would adversely affect national security.” The law was not tailored narrowly to protect an investigation, she ruled, but rather gagged “a citizen complaining about governmental action.” Silencing recipients of NSLs, she observed pointedly, “cr
eates a unique situation in which the only people who possess non-speculative facts about the reach of broad, federal investigatory authority are barred from discussing their experience with the public.… The potential for abuse is written into the statute.”9
Her warning was prescient, for the Bush administration used the gag provision to censor the librarians during critical congressional deliberation. Since a district court judge has the first word but not the last, Judge Hall followed customary procedure by temporarily staying her order pending appeal, leaving the gag on as long as the Justice Department pursued the case. And the Justice Department pursued the case as long as it wanted the librarians quiet. As a result, the FBI continued to issue the letters and silence their recipients. Neither the judge’s ruling nor the disclosure of Library Connection’s name released Christian or his colleagues to speak, creating painful zones of secrecy within their own families and blank spots in the public debate.
When Peter Chase, a librarian from Plainville, drove home one day, his college-age son “came up to the car, and he looked a little worried like something was wrong. ‘Dad, you just got a call from the Associated Press. They said something about the FBI. Is the FBI after you, Dad? What is going on?’ And really, all I could say was that I was involved in a case, it was a secret case, we’re not supposed to discuss it, he shouldn’t tell anyone about this, and I wasn’t going to say anything either.” Then Chase chuckled. “I never did ask him what he thought was going on. I should ask him what he thought I was up to!”10
The Rights of the People Page 27