'It's This Culture of Secrecy That's Pervading the Courts'

Janine Jackson interviewed the ACLU’s Melissa Goodman about the PATRIOT Act for the September 30, 2005, episode of CounterSpin—a conversation that was reaired on the November 29, 2019, show. This is a lightly edited transcript of the rebroadcast.

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Janine Jackson: Librarians might be described as the canaries in the coal mine on US civil liberties, a kind of early warning system about predations on our freedom to gather and share information. As such, librarians were out in front in challenging the ominously sweeping powers given to law enforcement under the 2001 USA PATRIOT Act. And it’s libraries that are now at the center of a critical court case involving the PATRIOT Act and the right to talk about it, and even to know about it. Here to tell us what's going on and what it means to us is Melissa Goodman, national security fellow for the American Civil Liberties Union, who are involved in this case. Melissa Goodman joins us now by telephone. Welcome to CounterSpin.

Melissa Goodman: Thank you, Janine, and I'm happy to be here.

JJ: First, please fill us in, if you would, on the basic facts on this Connecticut librarian case, and what is the current state of play?

MG: Sure. Well, let me first say what national security letters are. Essentially, they're a tool the FBI can use to demand personal records from internet service providers, which includes more than just something like America Online, but also libraries, universities, even places like Amazon.com, any place where you can communicate over the internet, essentially.

Through these national security letters, the FBI can demand personal records about innocent people, without any court approval or any oversight. And essentially what happens is, if you are an organization or person who gets one of these letters, you are gagged forever from telling anyone about it, and saying anything about it whatsoever, even where there's absolutely no threat to national security.

The ACLU's client later turned out to be the Library Connection, a consortium of Connecticut libraries that included the Welles-Turner Memorial Library in Glastonbury.

The ACLU has actually filed two cases with regard to the national security letter power. Our most recent case we filed in Connecticut, challenging both the statute and a particular NSL that was—I can not say very much about it, because I am under a very heavy FBI gag order—but it was served on an organization with library records that is a member of the American Library Association. That's all I can say about our client. Basically, as soon as they got this letter, they were gagged.

We challenged that gag and the NSL itself. What we did, because Congress is in the throes of finalizing the PATRIOT Act reauthorization legislation in the next week or so, we wanted to make sure that our client, who had very important things to say about the PATRIOT Act, could actually participate in that debate. However, because of the gag, they can't, and also because of the gag, there's a lot of information that the public can't know as well.

So we went in and we asked a judge in Connecticut, who is Judge Hall, to give us a preliminary injunction, that basically would allow our clients to speak in time to participate in the PATRIOT Act debate. We actually won that, and Judge Hall granted an injunction.

But what happened is, she stayed her ruling for 20 days, which basically says this ruling won't go into effect, and gave the government an opportunity to appeal the decision. The government rushed into the appellate court, which is the Second Circuit Court of Appeals, and applied for a stay.

We opposed that, we opposed that strenuously, given that the debate is about to draw to a close in Congress, and they're going to act without having vital information from people with firsthand knowledge of how the PATRIOT Act is being used.

What happened is the Second Circuit agreed with the government and granted a stay.

One good thing they did was, they set an expedited schedule for the appeal, which means it's happening very quickly. Right after they granted that stay in the Second Circuit, we actually moved to vacate the stay—I'm actually not allowed to tell you why—and we just learned today that they denied that as well. So now we're just waiting to finish the appeal.

Melissa Goodman: "If the government is going to come in and say you can't say something you have a constitutional right to say, they have to meet a very high burden."

JJ: Now, let's be clear, from the Department of Justice perspective, the federal government's line is that the reason for this gag order is that if the name of the people who'd been served with these national security letters were known, then the suspects—who, as you point out, under the PATRIOT Act, need not be under active investigation or have hard evidence against them—the suspects would somehow be able to piece together the investigation, and that this, therefore, trumps the librarians’—or whoever's—free speech rights.

MG: That's absolutely right, Janine. And in fact, the most troubling thing about what the government has done here is that, in the First Amendment context, if the government is going to come in and say you can't say something you have a constitutional right to say, they have to meet a very high burden. It's not enough for them to come in and say, “National security is affected.” The courts are very clear that you need to say more than that. You need to show, in this particular case, that the secrecy is needed because some very particular harm will happen.

And what they did here, rather than come in and say anything specific to this particular situation, this particular target, they came in and said, “Counterterrorism investigations are just different.” They essentially argue that you always need blanket and complete secrecy. And it's an incredibly dangerous argument that they've been pressing, not just in this case, but in many other cases, and it's depriving the public and the courts and Congress of vital, vital information that they need.

Attorney General John Ashcroft

JJ: In her ruling lifting the gag order, US District Judge Janet Hall cited some 2003 comments by Attorney General John Ashcroft, accusing people who feared government searches of reading records of hysteria. He said that no library records have been seized. Most recently, I saw him saying none were seized in the first two years of the PATRIOT Act. But I guess the point is, we don't really know, do we, just how the government is applying the PATRIOT Act?

MG: That's absolutely true.  The biggest problem, I can't emphasize enough, with the PATRIOT Act debate, is that it's an absolutely lopsided debate. Because of these gags that are built into all of the provisions, the National Security Letter provision, and the other provision—the one that Attorney General John Ashcroft was talking about with Section 215—those have built-in gags. So therefore, anyone who actually knows that the FBI is using their power in these ways that they're denying that they're using them, can't tell anyone about it.

And it's not even just that you're gagging the people who have firsthand knowledge. The Justice Department has even refused to give information directly to members of Congress about how they're using the PATRIOT Act. Over and over, members of Congress have complained that they're doing oversight in the dark. And I'm not quite sure how Congress is supposed to make informed decisions about whether the PATRIOT Act simply went too far or not, or how the public is supposed to make that decision, when it's impossible to know.

JJ: Journalists might say, then, that this is a story where there's a lot of information lacking, a lot that they simply don't know. But you might suggest that that itself is a worthy topic of some sort of investigation or coverage.

MG: That is absolutely true. I think that it is very important for the media to pay close attention, not just in this case, but actually in many other cases, cases where the government has come in and insisted on redacting a tremendous amount of what we consider to be innocuous information. It’s happening over and over. The government consistently files secret evidence, now, that we're not allowed to see.

And it's this culture of secrecy that's pervading the courts, it's pervading all aspects of life. It really has a tremendous impact on the foundations of our democratic system, and it's really only the press who can consistently shine a light on that and question why, and try to push back against it.

JJ: That was the ACLU’s Melissa Goodman, on the show in September 2005.