The Defense Refuses to Rest

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2009 © Chris Lyons /

After all these years, the thing Nick Merrill still cannot get over is that the guy was actually wearing a trench coat.

It all started on a frosty February afternoon in 2004 when Merrill, the president of a website hosting company called Calyx, got a phone call in his lower Manhattan office from the Federal Bureau of Investigation (FBI), informing him that an agent would be stopping by shortly to deliver an envelope. The two-page subpoena contained within, officially referred to as a National Security Letter (NSL), would compel Merrill to turn over all records pertaining to any individuals named.

Since Merrill ran an Internet service provider, that meant relinquishing clients’ personal e-mails, business correspondence, and information regarding what websites they visited and when–mountains of data that, as Merrill says, “paint an incredibly vivid picture of a person.”

Before Merrill could process the conversation, he heard a knock. “The guy at the door was everything you would imagine an FBI agent to be, in the most clichéd sense,” he recalls. “The trench coat, the wallet with the badge. It was surreal.”

The letter, however, was very real and, as his taciturn visitor stood by, Merrill began to digest its contents. Among other things, the government wanted information on an individual who published a post on an indie media website, one of Calyx’s clients. There were no specific reasons given for the inquiry and no documented proof of wrongdoing. There wasn’t even a judge’s signature.

Merrill says he looked at the FBI man “incredulously” and asked if he could seek legal advice. That’s when the bombshell dropped: He could neither consult a lawyer nor discuss the day’s interaction with anyone. Merrill then asked what would happen if he violated the gag order. The agent refused to answer.

In the past, the FBI and the CIA used NSLs to investigate suspected terrorists and spies, but the Patriot Act, passed in the immediate wake of 9/11, amended the law to allow federal agencies to use the letters to obtain information on anyone, with or without probable cause. From 2003 to 2006, according to the Washington Post, the government issued 192,499 NSLs. Until Merrill defied the order by choosing to talk to his attorney, however, no one had dared to undertake a legal challenge of the procedure.

“I wasn’t threatened explicitly when I talked to my lawyer,” Merrill says. “But the whole thing was pretty scary at the time. It was 2004 and there were stories about enemy combatants being taken away and never heard from.

“I asked, ‘How do I know that they won’t put a hood over my head and make me disappear?’ The answer was that we didn’t know. The letter was that vague.”

Merrill and his counselor contacted the local office of the American Civil Liberties Union. In April 2004 the ACLU’s national organization teamed up with its New York affiliate and filed a lawsuit challenging the constitutionality of the gag order on behalf of Merrill, who, for the next six years, would be referred to in public documents only as John Doe.

When a pundit or a candidate calls someone a “card-carrying member of the ACLU,” we all know what it means. The phrase is accepted shorthand for an out-of-touch idealist, a softheaded snob–one of those liberals who hate America and everything it stands for.

If this tack were simply a matter of exaggeration, like calling Barack Obama a socialist for pursing health care reform, it would be easier to ignore. But given the country’s current obsession with national security and the evolution of increasingly intrusive surveillance technology, it is difficult to overstate how damaging it is when the citizenry equates the ACLU’s mission with worn-out political stereotypes.

“The word liberal has become an epithet. And, yes, the ACLU is liberal in the classic sense,” says Tom Ginsburg, a professor at the University of Chicago Law School. “That’s because they’re focused on individual liberties–which is why they always face pressure from the forces of order. But they’re liberal in a small-l sense of the word. They aren’t liberal in regard to the disputes of the day.” 

Eugene Volokh, a self-described conservative and libertarian who teaches law at UCLA, agrees that the ACLU is not interested in partisan bickering. The group’s actions are motivated by a particular interpretation of the Constitution with which Volokh often disagrees–but he nonetheless believes that it both enables and ensures a full-throated debate on crucial issues.

“They generally advocate not just for negative rights [freedom of worship, freedom of speech], but also for positive rights [right to counsel, cultural rights],” he says. “Which sometimes associates them, quite correctly, with big government.”

ACLU President Susan Herman explains that the “Bill of Rights is the organization’s primary client,” which means its staff lawyers and pro bono attorneys take on cases and causes in the name of defending privacy, equality, justice, free speech, and a free press–timeless fights that require tenacity no matter who dominates Congress, sits on the Supreme Court, or occupies the White House.

“I think when Obama came into office a lot of people thought we would hang up the mission-accomplished banner,” Herman says. “Yet he supports the National Security Letters and is arguing for their expansion; his Justice Department is no less obstructionist than the last; and the federal courts have not heard a single claim by a torture victim.”

The ACLU was formed in 1920 to fight the Sedition Act of 1918, which criminalized disloyal statements during wartime. Since then, the nonprofit has counted on member support to bankroll thousands of cases ranging from protecting the voting rights of African Americans to defending the Ku Klux Klan’s First Amendment claims; from advocating for the separation of church and state to shielding religious fundamentalists from state persecution.

“If you agree with the ACLU 80 percent of the time, you should be a member,” Herman says. “If you agree 50 percent of the time, you should be on the board.”

There are 200 lawyers in the ACLU’s national headquarters, and hundreds more consult with the organization’s 50 state offices. Given these relatively modest resources, the board of directors must constantly wrestle with priorities.

The overcrowded penal system is a leading concern, Herman says, both because of the racial disparities inherent in the “war on drugs” and because society’s overreliance on incarceration is sapping precious tax dollars–a one-two punch popular in red and blue states alike. Among other things, the organization also senses that scientific advancements in gene research will kick up compelling, philosophically rigorous cases revolving around patent law and cloning (see “Humanoid Rights,” p. 8).

At present, though, the ACLU is rallying most of its troops around the wide-ranging, seemingly endless “war on terror.” “We spend an enormous amount of time trying to fight the secrecy,” Herman says, “because people have the right to know what the government is doing.”

Before 9/11, ACLU membership hovered just above half a million. In the years since, it has more than doubled. “When there’s an attack on America, there’s always a recalibration of the balance between liberty and order,” Tom Ginsburg says. “Initially the courts and citizens are passive. Ultimately, though, people start to pay attention.”

What makes legal advocates so important, Ginsburg goes on to explain, is that in order for the judicial branch to perform checks and balances it must have cases. “Judges can do a lot, but they can’t do it alone,” he says.

Nick Merrill’s dilemma presented a perfect opportunity to challenge a yawning, constitutionally specious information grab. In August, after Merrill’s case snaked its way through the Second Circuit Court of Appeals and the U.S. District Court for the Southern District of New York, the ACLU and the government finally agreed to a settlement that partially lifted the gag order. For the first time, Merrill can talk about what happened, and a precedent now exists that allows attorneys to challenge the constitutionality of NSL gag orders.

Cautiously optimistic and no longer running Calyx, the 38-year-old entrepreneur plans to launch a nonprofit organization to help protect Internet users’ rights. The yet-to-be named entity will encourage Internet service providers and telephone companies to make privacy a priority and to provide those that are willing to do so with the appropriate technology.

“These are really important issues,” Merrill says. “I don’t want our country to go down the road with India, Burma, or Iran.”

On this point, I’m guessing, there aren’t many people on either side of the political divide who would disagree.

This article first appeared in the January-February 2011 issue of Utne Reader.

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