annualconfwo.cfm#events.
19. Patriot Act, § 218, and 50 U.S.C. § 1804(a)(7)(B). In a memorandum dated March 6, 2002, Attorney General John Ashcroft interpreted this amendment to mean that FISA could now “be used primarily for a law enforcement purpose, so long as a significant foreign intelligence purpose remains.” In Re: All Matters Submitted to the Foreign Intelligence Surveillance Court.
20. Eric Lichtblau, “U.S. Uses Terror Law to Pursue Crimes from Drugs to Swindling,” New York Times, Sept. 28, 2003, p. A1.
21. The lone dissenter was Senator Russ Feingold, Democrat of Wisconsin.
22. ACLU, “Year-Long Extension Contains No Privacy or Civil Liberties Safeguards,” Feb. 25, 2010, http://www.aclu.org/national-security/congress-reauthorizes-overbroad-patriot-act-provisions.
23. Thomas Frank, What’s the Matter with Kansas?: How Conservatives Won the Heart of America (New York: Metropolitan Books, 2005).
24. Bullets are usually made from lead batteries that are melted down. Two assumptions have proven incorrect: first, that the composition of the molten lead is consistent throughout, when in fact the beginning, middle, and end of the pour can contain different mixtures of elements, and second, that each batch is unique, when in fact multiple batches can be nearly identical. The first known use of the technique came in an attempt to analyze fragments of bullets in John F. Kennedy’s assassination, but in 1964 the FBI director J. Edgar Hoover informed the Warren Commission, which was looking into the assassination, that the lab was unable to distinguish among the pieces of lead. John Solomon, “FBI Forensic Test Full of Holes,” and “A Murder Conviction Torn Apart by a Bullet,” Washington Post, Nov. 18 and 19, 2007, p. A1.
25. Melendez-Diaz v. Massachusetts, 07-591 (2009). The decision was 5–4, the opinion by Scalia.
26. Office of the Inspector General (OIG), The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases, Apr. 1997.
27. The account of the lab’s work is drawn from the Office of the Inspector General (OIG). See Fine, A Review of the FBI’s Handling of the Brandon Mayfield Case.
28. Melissa Anne Smrz et al., “Review of FBI Latent Print Unit Processes and Recommendations to Improve Practices and Quality,” Journal of Forensic Identification, 56 (3) 2006, p. 416.
29. Brandon Mayfield et al. v. John Ashcroft et al., Complaint for Violation of Civil Rights, CV-04-1427-PA, Oct. 2004, p. 6. Details of the investigation are drawn from both the Mayfield complaint and the OIG report.
30. Robert B. Stacey, “Report on the Erroneous Fingerprint Individualization in the Madrid Train Bombing Case,” Forensic Science Communications, Jan. 2005, Vol. 7, No. 1, at http://www.fbi.gov/hq/lab/fsc/backissu/jan2005/special_report/
2005_special_report.htm.
31. E-mail from Angela Bell, FBI Office of Public Affairs, March 22, 2007.
32. Sarah Kershaw et al., “Spain and U.S. at Odds on Mistaken Terror Arrest,” New York Times, June 3, 2004, p. A1.
33. Mayfield complaint, p. 15.
34. The CIA, the National Security Council, the Defense Department, the Department of Homeland Security, the Justice Department, the FBI, the Treasury Department, and the National Security Agency.
35. “Judge Unseals Evidence for Lawyer Wrongly Arrested in Madrid Bombings,” AP, Sept. 21, 2004.
36. “Judge Unseals Evidence” and Fine, A Review of the FBI’s Handling of the Brandon Mayfield Case, p. 82.
37. Fine, quoting material witness arrest-warrant affidavit, pp. 66, 252–53.
38. Judge Ann Aiken, opinion of Sept. 26, 2007, in Brandon Mayfield et al. v. United States of America, Civil No. 04-1427-AA (D. Or. 2007).
39. Mayfield complaint, p. 12.
40. Fine, p. 59.
41. Mayfield complaint, p. 10.
42. Fine, p. 56.
43. E-mail from Beth Anne Steele of the FBI Portland office to a colleague, quoted in Eric Lichtblau, Bush’s Law: The Remaking of American Justice (New York: Pantheon, 2008), p. 72.
44. Smrz et al., Journal of Forensic Identification, 56(3)2006, pp. 418–33.
45. Richard Willing, “FBI Checking Prints in Death Row Cases,” USA Today, Jan. 11, 2006, p. 3A. After Special Agent Ann R. Todd, assigned to speak for the lab, failed to respond to the queries, Angela D. Bell, FBI Office of Public Affairs, said, “Unfortunately, the management at the FBI has determined that we can not provide any additional comment and/or information.” E-mail, March 22, 2007.
46. Sarah Skidmore, “Wrongly Accused Man Settles Bomb Suit,” AP, Nov. 29, 2006. The comment was so obtuse that I wondered if Jordan had been misquoted, so I called him three times and left offers with his assistant and his press officer to receive a clarification or correction, if one was warranted. They didn’t provide one and so let the statement stand.
47. 50 U.S.C. §§ 1805 (a) (5), 1824 (a) (5); H.R. Rep. No. 95-1283, Part I, 95th Congress. 2d Session (1978), at 80–81.
48. Brandon Mayfield et al. v. United States of America, Civil No. 04-1427-AA (D. Or., Sept. 27, 2007). The statutes amended by the Patriot Act, 50 U.S.C. §§ 1804 and 1823, were found unconstitutional by the District Court judge, before the Ninth Circuit refused to let the suit go forward.
49. Mayfield et al. v. United States of America, No. 07-35865 (9th Cir., 2009). Mayfield had argued that the government’s retention of private materials unconstitutionally seized under FISA constituted an ongoing injury to him, but the appeals court found that even if that were the case, a finding that the seizure violated the Fourth Amendment would not require the government to return or destroy the materials. Therefore, no redress was possible. Mayfield’s petition asking that the full membership of the appeals court rehear the case en banc was denied. The Supreme Court refused to review the decision.
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.
CHAPTER 6: THE LAW FALLS SILENT
1. For a detailed matrix of governmental powers to conduct searches and their codification in law, see “Current Legal Standard
s 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.
The Rights of the People Page 47