Source: Boiling Frogs Post and Corbett Report
James Corbett
TRANSCRIPT AND SOURCES:
James Corbett
TRANSCRIPT AND SOURCES:
The passage of the Patriot Act in October 2001 is by now an
all-too-familiar story. The American people, already suffering from the
trauma of 9/11, were pushed into outright panic by the anthrax attacks,
a series of anthrax-laced mailings that killed five, injured 17 and
shut down congress for the first time in modern history. The Act itself
was introduced on a Tuesday and signed into law on Friday, before anyone
had read let alone understood the sweeping changes it would introduce
to American law.
One of those changes were amendments to a little-known and little-used FBI instrument called National Security Letters.
National Security Letters allow the FBI and other agencies to issue
businesses and institutions requests for private data on citizens,
including financial transactions and communications records, regardless
of whether or not they are even suspected of any crime, and to hold that
data indefinitely. One of the most worrying aspects of the letters are
their non-disclosure clause, which not only prohibits recipients from
disclosing the contents of the letter, but even the fact that they have
received a letter at all.
The letters were first introduced as an amendment to the 1978 Right to Financial Privacy Act.
Originally requiring issuing agencies to give advance notice of the
request and allow the subject an opportunity to challenge it, the
instrument was amended
in 1986 to allow letters to be issued without advanced notice in cases
where the FBI had “specific and articulable facts giving reason to
believe that the customer or entity whose records are sought is a
foreign power or an agent of a foreign power.” At the time, compliance
with the letters was voluntary and recipients frequently declined to
disclose the information. In the 1980s and 1990s, amendments were passed
compelling compliance and allowing the FBI to issue letters even when
the subject of the request was not under direct investigation.
With the passage of the Patriot Act, however, the scope of the program was expanded aggressively.
Under the Act, the FBI was granted the power to issue National Security
Letters against US citizens, even if those citizens were not suspected
of any criminal activity. For the first time, other agencies were also
granted the ability to issue the letters. And, unlike other legal
instruments for obtaining information like a warrant or subpoena, the
letters require no judicial approval before being issued.
Despite the incredible frequency with which the letters were issued
after the Patriot Act—with the FBI alone averaging 50,000 letters per
year between 2003 and 2006—it was not until 2004 that the program was
challenged in the courts, with Judge Victor Marrero of the Southern
District of New York finding that the National Security Letters violated both the First and Fourth Amendments.
The case revolved around Nicholas Merrill, the owner of an Internet
Service Provider who was issued a National Security Letter by the FBI
requesting 16 categories of information about certain customers,
including email addresses, billing information, and a number of other
pieces of data that remain classified to this day.
Refusing to comply with the letter, Merrill entered a years-long
legal battle that included the FBI’s dropping of its request for the
information, but still insisting that he could not publicly speak about
the letters or even identify himself as the recipient.
It was not until August 2010 that the FBI partially lifted the gag
order, allowing Merrill to be identified for the first time. Shortly
thereafter, he appeared on the BoillingFrogsPost podcast with Sibel Edmonds and Peter B. Collins to discuss his ordeal:
In 2007, the results of an internal FBI audit of the National
Security Letters program was made public. The audit only covered 10% of
the bureau’s national security cases, yet still uncovered over 1000 instances
where the FBI broke their own regulations, including dozens of cases
where they had requested information that they were not legally allowed
to ask for.
An Inspector General report
released that March examined a sample of FBI case files and found that
there were more National Security Letters issued than there were in the
Bureau’s reporting database. The report concluded that the FBI had
likely grossly misled the public about how many such letters had been
issued. In response, FBI director Mueller admitted a “pattern of abuse
of authority” within the Bureau that cast doubt on the ability of the
FBI to guard the public trust.
Also in 2007 it was revealed
that the FBI have issued letters requesting financial records of
American companies on behalf of the Defense Department and even the CIA,
in direct contravention of its mandate to conduct investigations and
operations exclusively overseas. The DoD letters do not have the same
mandatory compliance restrictions as FBI letters, but when they were
revealed in an ACLU lawsuit it was discovered that the letters were coercive and often did not make it clear that compliance with the requests was voluntary.
One of the most heartening things about the National Security Letters
is that time and again, companies and institutions that have challenged
the letters have succeeded in getting the FBI to back down. In Nicholas
Merrill’s case, the Bureau dropped its request and partially lifted the gag order preventing him from speaking about it. In 2006, the FBI dropped a request
for information regarding computer usage at a Connecticut library and
withdrew a gag order on its recipients after being challenged in court.
In 2008, the Electronic Frontier Foundation and the ACLU succeeded in
getting the FBI to withdraw a request it had made for records pertaining to a user of the Internet Archive.
Herein lies the hope inherent in so many of these inherently
tyrannical abuses of government power: that when forced to defend their
position in the light of public scrutiny, the tyrants will readily turn
tail and run. But, as Sibel Edmonds goes on to point out in that
BoilingFrogsPost interview with Merrill, what does it say about the
hundreds of thousands of national security letter recipients who did
nothing to challenge this practice? Surely nothing can be a more damning
indictment of a society that once thought of itself as a beacon of
liberty for the world that fewer than one in fifty thousand are willing
to stand up and challenge the presumed authority of an agency, and a
process, that is clearly and admittedly out of control.
So in this microcosm of the national security letter we can see the
macrocosm of the police state control grid as a whole. If it is true
that for evil to triumph, good men and women must do nothing, than all
it takes to defeat that evil is for the good men and women to simply say
no and hold their ground.
