No Comment — August 10, 2010, 3:47 pm

Tales from Stasiland: The letter that makes you disappear

One of the creepier weapons in the arsenal of the national-security state is the “national-security letter” or NSL. It’s no ordinary letter, and it travels postage-free, but at enormous expense to the taxpayers. The FBI issues roughly 50,000 of them a year, and the Justice Department’s own internal review in 2007 concluded that many of them were issued abusively, skirting the law and internal rules. The idea is simple: the device is something like a subpoena, though it doesn’t require approval of a judge to issue. Instead, the FBI requires the recipient to help it in an investigation targeting a third party. It might be dropped on a librarian, with a demand that she tell the FBI every book that a certain subscriber checked out, every magazine he perused, and every time he accessed the Internet using a computer at the library. Or it might go to an Internet service provider, requiring information about every website viewed by a certain customer.

But the NSL also imposes a gag order on its recipient: you may not tell anyone you got this letter. On several occasions, the issuance of an NSL has been challenged by the recipient, but then the gag order applies to the litigation as well. The suit is brought by “John Doe,” and the claimant is required to keep the whole matter secret. One recipient wrote an anonymous op-ed in the Washington Post:

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…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.

But how can long-term gag orders be reconciled with the Constitution’s protection against warrantless search and seizure and the protection of free speech and press? Judge Richard Cardamone, writing a concurring opinion for the Second Circuit in one NSL case, acknowledged that a gag order might be imposed for a short period, but he observed that “a perpetual gag on citizen speech of the type advocated so strenuously by the government may likely be unconstitutional.”

Now as a result of a partial settlement in one of several cases in which the FBI’s use of NSLs is being successfully challenged, one of the recipients has been allowed to emerge from the shadows. His name is Nicholas Merrill, a Manhattan native who ran an Internet start-up named Calyx. He was hit with an NSL demanding that he “provide 16 categories of ‘electronic communication transactional records,’ including e-mail address, account number and billing information.” That isn’t all of it—but the FBI insists that most of its requests remain secret. The FBI withdrew its NSL to Merrill in 2006, apparently after concluding it had bitten off more than it could chew. Ellen Nakashima profiles Merrill in a piece in the Washington Post:

For six years, Nicholas Merrill has lived in a surreal world of half-truths, where he could not tell even his fiancee, his closest friends or his mother that he is “John Doe” — the man who filed the first-ever court challenge to the FBI’s ability to obtain personal data on Americans without judicial approval. Friends would mention the case when it was in the news and the normally outspoken Merrill would change the subject. He would turn up at the federal courthouse to hear the arguments, and in an out-of-body moment he would realize that no one knew he was the plaintiff challenging the FBI’s authority to issue “national security letters,” as they are known, and its ability to impose a gag on the recipient.

What led Merrill to mount a challenge against the use of NSLs?

Two things, he said, “just leaped out at me.” The first was the letter’s prohibition against disclosure. The second was the absence of a judge’s signature. “It seemed to be acting like a search warrant, but it wasn’t a search warrant signed by a judge,” said Merrill. He said it seemed to him to violate the constitutional ban against unreasonable searches and seizures. The letter said that the information was sought for an investigation against international terrorism or clandestine intelligence activities. Merrill said he thought it “outlandish” that any of his clients, many of whom were ad agencies and major companies as well as human-rights and other nonprofit groups, would be investigated for terrorism or espionage.

In the view of the national-security state, however, the prohibition on warrantless searches and seizures doesn’t apply to national security matters. They’ve argued this proposition for some time, with a good deal of success—especially with judges appointed by George W. Bush, who seem inordinately beholden to the concept of national security. Although other judges have found that the Fourth Amendment can’t simply be brushed aside, the experience with NSLs is a good demonstration of how the civil liberties envisioned by the Framers are being frittered away–in the hypothetical interest of national security.

Share
Single Page

More from Scott Horton:

Conversation August 5, 2016, 12:08 pm

Lincoln’s Party

Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

Get access to 165 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

May 2017

A Dream Preferred

= Subscribers only.
Sign in here.
Subscribe here.

Snowden’s Box

= Subscribers only.
Sign in here.
Subscribe here.

American Duce

= Subscribers only.
Sign in here.
Subscribe here.

A Prayer’s Chance

= Subscribers only.
Sign in here.
Subscribe here.

Bee-Brained

= Subscribers only.
Sign in here.
Subscribe here.

The Mothers

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
Snowden’s Box·

= Subscribers only.
Sign in here.
Subscribe here.

Mrs. B’s Baby Village Day Care was on a frontage road between a mattress wholesaler and a knife outlet. There were six or so babies as regulars and another one or two on weekends when their parents were passing through looking for work. They wouldn’t find work, of course, all the security positions were full, the timber and ore had all been taken under the active-stewardship program, and the closest new start-up industry was the geothermal field hundreds of miles away. Mrs. B didn’t even bother to write those babies’ names down in her book. It was fifteen dollars a day and they had to be in reasonable health. Even so the occasional mischievous illness would arise and empty the place out.

Illustration (detail) by Taylor Callery
Post
The Forty-Fifth President·

= Subscribers only.
Sign in here.
Subscribe here.

Mrs. B’s Baby Village Day Care was on a frontage road between a mattress wholesaler and a knife outlet. There were six or so babies as regulars and another one or two on weekends when their parents were passing through looking for work. They wouldn’t find work, of course, all the security positions were full, the timber and ore had all been taken under the active-stewardship program, and the closest new start-up industry was the geothermal field hundreds of miles away. Mrs. B didn’t even bother to write those babies’ names down in her book. It was fifteen dollars a day and they had to be in reasonable health. Even so the occasional mischievous illness would arise and empty the place out.

Photograph (detail) by Philip Montgomery
Article
A Prayer’s Chance·

= Subscribers only.
Sign in here.
Subscribe here.

Mrs. B’s Baby Village Day Care was on a frontage road between a mattress wholesaler and a knife outlet. There were six or so babies as regulars and another one or two on weekends when their parents were passing through looking for work. They wouldn’t find work, of course, all the security positions were full, the timber and ore had all been taken under the active-stewardship program, and the closest new start-up industry was the geothermal field hundreds of miles away. Mrs. B didn’t even bother to write those babies’ names down in her book. It was fifteen dollars a day and they had to be in reasonable health. Even so the occasional mischievous illness would arise and empty the place out.

Photograph (detail) by Robin Hammond/NOOR
Article
Bee-Brained·

= Subscribers only.
Sign in here.
Subscribe here.

Mrs. B’s Baby Village Day Care was on a frontage road between a mattress wholesaler and a knife outlet. There were six or so babies as regulars and another one or two on weekends when their parents were passing through looking for work. They wouldn’t find work, of course, all the security positions were full, the timber and ore had all been taken under the active-stewardship program, and the closest new start-up industry was the geothermal field hundreds of miles away. Mrs. B didn’t even bother to write those babies’ names down in her book. It was fifteen dollars a day and they had to be in reasonable health. Even so the occasional mischievous illness would arise and empty the place out.

Illustration (detail) by Eda Akaltun. Source photograph of Jairam Hathwar at the 2016 Scripps National Spelling Bee © Pete Marovich/UPI/Newscom
Article
My First Car·

= Subscribers only.
Sign in here.
Subscribe here.

Mrs. B’s Baby Village Day Care was on a frontage road between a mattress wholesaler and a knife outlet. There were six or so babies as regulars and another one or two on weekends when their parents were passing through looking for work. They wouldn’t find work, of course, all the security positions were full, the timber and ore had all been taken under the active-stewardship program, and the closest new start-up industry was the geothermal field hundreds of miles away. Mrs. B didn’t even bother to write those babies’ names down in her book. It was fifteen dollars a day and they had to be in reasonable health. Even so the occasional mischievous illness would arise and empty the place out.

Illustration by Katherine Streeter

Number of U.S. major-league baseball players this year who are natives of the Dominican Republic:

79

A psychopharmacologist named David Nutt declared that there was no good reason why scientists couldn’t come up with a cocktail of drugs that mimics all the pleasurable effects of alcohol without any of the negative side effects.

Three bodies were tossed from a low-flying plane in the Sinaloa state of Mexico.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Who Goes Nazi?

= Subscribers only.
Sign in here.
Subscribe here.

By

"It is an interesting and somewhat macabre parlor game to play at a large gathering of one’s acquaintances: to speculate who in a showdown would go Nazi. By now, I think I know. I have gone through the experience many times—in Germany, in Austria, and in France. I have come to know the types: the born Nazis, the Nazis whom democracy itself has created, the certain-to-be fellow-travelers. And I also know those who never, under any conceivable circumstances, would become Nazis."

Subscribe Today