Monday, February 15, 2016

Lifting the Veil of Bush-Era Secrecy

On a snowy afternoon in February 2004, an FBI agent came to Nick Merrill’s door, bearing a national security letter (NSL).  At the time, Merrill was  running a small internet service provider (called Calyx) on Manhattan's west side. 

The NSL demanded details on one of his company’s clients-- including cellphone tower location data, email details and screen-names.  If Merrill even talked about the NSL with his girlfriend or a lawyer, he could go to jail on "national security" charges.

NSL's were sparingly used over the years, but the Patriot Act vastly expanded what an NSL could be used for, and the FBI began rapidly abusing the tool, issuing nearly 57,000 in the most recent year.  After n 11-year battle with the FBI, Merrill can now finally tell his story to the public.

With the ACLU, Merrill went to court to challenge the constitutionality of the letter, and its associated gag order.

The case, in which Merrill was listed as a “John Doe” because of the terms of the order, was against the attorney general, John Ashcroft, FBI director, Robert Mueller, and FBI senior counsel Marion Bowman.

The same year, a district court judge, sided with Merrill against the federal government, finding that the letter violated his fourth amendment rights. A year later, in response, Congress amended the statute. Merrill went to court again; again, the district court struck down the law.  In 2008, a second circuit judge affirmed that decision.  The FBI eventually decided it no longer wanted the information it had demanded and dropped its demand for records-- but it continued to challenge Merrill's right to disclose the letter and publicly discuss his case.

In 2014, a federal judge in New York finally ruled that the gag order be completely lifted.  After waiting out the period in which the Department of Justice could appeal, Merrill finally received permission to publish the full, un-redacted version of the letter.

It has taken a long fifteen years-- but we are another step closer to unraveling the tortured legacy of the Bush administration.

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