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Gagged for 6 Years, Nick Merrill Speaks Out on Landmark Court Struggle Against FBI’s National Security Letters

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For six years, the FBI has barred a New York man from revealing that the agency had ordered him to hand over personal information about clients of his internet start-up. Finally allowed to speak, Nick Merrill joins us in his first broadcast interview to talk about how he challenged the FBI’s use of national security letters. We also speak with Connecticut librarian George Christian. He and three other librarians also sued the US government after receiving a national security letter demanding information about library patrons. [includes rush transcript]

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We begin today’s show with a guest here in New York who has been under an FBI gag order for the past six years. In early 2004, an FBI agent visited Nicholas Merrill and handed him a national security letter that ordered him to hand over detailed private records about some of his customers. At the time, Merrill was running an internet service provider in New York called Calyx.

Under the USA PATRIOT Act, the FBI issued more than 192,000 national security letters between 2003 and 2006 in order to obtain sensitive information without a court order. Under the law, recipients of the letters are barred from telling anyone about their encounter with the FBI.

While Nicholas Merrill was not the first American to be gagged after receiving a national security letter, an NSL, he was the first to challenge the FBI’s secret tactics. After receiving the national security letter, Merrill went to the American Civil Liberties Union, which then filed the first lawsuit challenging the national security letter statute. In the lawsuit, Merrill was simply identified as John Doe. It was only this week, after reaching a settlement with the FBI, that Merrill has been able to come public to reveal his identity. Nick Merrill joins us here in New York.

We welcome you to Democracy Now!

NICHOLAS MERRILL: Thank you. Good morning.

AMY GOODMAN: It’s good to have you with us. I bet it’s good to be able to speak.

NICHOLAS MERRILL: It is kind of a relief, yeah. It’s also a bit surreal, because I’m not exactly used to it yet. And almost every time I say something about it, I kind of have this knee-jerk reaction, like I’m not supposed to talk about that. And, you know, that got so ingrained into me that it’s still a bit strange.

AMY GOODMAN: Well, in a moment, we’re going to speak to a Connecticut librarian, who was joined with your case — four Connecticut librarians, because they, too, resisted an NSL.


AMY GOODMAN: But why don’t you tell us your story? What day was it? When did it happen? And what happened?

NICHOLAS MERRILL: I don’t know if I’m allowed to, for some reason, say the exact day. It was in February 2004. An FBI agent visited my office. He brought me a letter. You know, he badged himself. He identified himself as an agent. He gave me this letter. I opened it. I read it in his presence.

And a few things kind of leaped out at me upon first reading the letter, one of which was that I was commanded to never tell anyone — anyone — about the letter, not that I had received it, not that there had been a request for information. It was very broad, and there was no exceptions in there. There was no instructions on how to appeal. There was nothing about contacting a lawyer. So I said to the agent at that time, “It says here I can’t tell anyone about this. Does that include my attorneys? Does that include my business partners?” And the man said something to the effect of, “I’ve just been given the job of bringing you this letter. I don’t know. I’m not a decision maker.” And that was basically the end of our conversation. Then he left.

At that point, I was left with this letter, which asked for what I believe to be constitutionally protected information belonging to one of my clients.

AMY GOODMAN: You know, in the interest of full disclosure, we were one of your clients then.


AMY GOODMAN: We worked with Calyx.


AMY GOODMAN: We worked with you.


AMY GOODMAN: Did the FBI asked about us?

NICHOLAS MERRILL: I’m not allowed to really talk about the target of the investigation. That’s — you know, I’m partially released from the gag order, in that I can say I was the plaintiff in the case, it was my company, but I’m not allowed to say anything that would give anyone any kind of a hint, basically, as to which of my, you know, 200-some clients it may have been about.

AMY GOODMAN: And Democracy Now! was one of your clients. Who else were among your clients?

NICHOLAS MERRILL: You know, a lot of my clients had nothing to do with politics. They were just businesses. You know, some of them were really boring. There were household names, you know, Ikea, Snapple Iced Tea, Mitsubishi Motors, things like that. But, you know, then I also had a number of not-for-profit organizations, a number of NGOs.


NICHOLAS MERRILL: Well, I mean, I don’t know. I’d prefer not to mention names, if it doesn’t matter. But they’re really boring. You know, I mean, believe it or not, the New York Civil Liberties Union was one of the clients I was most proud of.

AMY GOODMAN: And so, what did you do? You did, in fact, contact your lawyer, though you didn’t know if that actually was violating the NSL.

NICHOLAS MERRILL: According to the — you know, to a strict reading of the letter, it seemed to be a violation of what they were telling me. It said, “Do not tell anyone.” But I basically took a leap of faith, feeling that I’m an American, I always have the right to talk to a lawyer, and I don’t believe there’s a such thing as “You can’t talk to a lawyer.” So, the first thing I did, basically, was call my personal attorney, and then he and I ended up going over to the New York Civil Liberties Union at first, and then later we were connected to the American Civil Liberties Union. So, yeah, I mean, that was a leap of faith, because, you know, the letter said, “Do not tell anyone.” But basically the first thing I did was tell someone.

AMY GOODMAN: Now, how did you decide to sue, to resist the NSL, not to hand over the information?

NICHOLAS MERRILL: You know, it was my gut feeling that — to do a search. You know, I’m not an attorney, but I know a bit about the Constitution. And my understanding is the government needs to prove probable cause and go to a judge in order to search. You know, one of the things that leapt out at me about this letter was that it was not signed by a judge. It was signed by someone from the FBI. You know, it seemed to me that that undercuts the whole system of checks and balances that we have, and I didn’t believe it was legal. And I had been reading about, you know, all the new powers under the PATRIOT Act, and it just seemed to me that I didn’t have much choice but to say something about it.

AMY GOODMAN: We’re going to break, and when we come back, we’re going to be joined by one of the four Connecticut librarians who were joined with your case.


AMY GOODMAN: Because, like you, they resisted the FBI’s call and sued the US government. We’re talking to Nick Merrill, president of the internet service provider Calyx, filed the first court challenge to the FBI’s national security letters in 2004. Stay with us.


AMY GOODMAN: Our guest, in his first national broadcast interview, is Nick Merrill. He has just gone public after being gagged for six years, having received a national security letter from the FBI, and the first to challenge it, to sue the US government.

Well, I also want to bring into this conversation someone else who was gagged by the FBI after receiving an NSL. George Christian is executive director of the Library Connection, a consortium of libraries in Connecticut. He joins us from Hartford.

George Christian, welcom to Democracy Now! I’m sure, as Nick spoke, it sounded familiar. Tell us what and when it happened to you.

GEORGE CHRISTIAN: It happened to us in 2005. And actually, it was thankful that —- we’re thankful that Nick made his protest. One of the problems is, when the FBI comes, part of you says, “Well, it’s the FBI. Let’s give them a hand.” I had never heard the words “national security letter” before. I asked our attorney what a national security letter was. She had never heard the words before. But thankfully, one of her assistants was able to do some research and find Nick’s case and find that a judge had declared that the statute was unconstitutional, because it violated the First, Fourth and Fifth Amendments of the Constitution. And that really -—

AMY GOODMAN: But George, could you step back a second? Could you step back a second and tell us —-


AMY GOODMAN: —- when you were handed that national security letter, where were you? Who came to your door?

GEORGE CHRISTIAN: It was July of 2005, a year after Nick received his. The two FBI agents came to our office with the letter. They had called a week before and told us that they were going to serve us with a security letter. The thing that leaked to my attention about our letter was that it concerned an incident back in February, five months prior to this. It was dated in May, two months prior to July. And it was still addressed to the wrong person at our office, although they had called to ask who it should be addressed to. So I could conclude that it was not a case of a hot pursuit and that if I dug my heels in, we weren’t jeopardizing any of our fellow citizens, but —- and thanks to -—

AMY GOODMAN: What did you say to the FBI agents who came to your door?

GEORGE CHRISTIAN: I said it was my understanding that a federal judge had ruled the statute authority they were using to be unconstitutional, and I would just like to talk with my lawyer. And the agent said, “Fine,” wrote a number on the back of his business card, and gave it to me. He said, “Have your attorney call this number.” And they left.

AMY GOODMAN: And so, you called —-

GEORGE CHRISTIAN: It was only after I called -—

AMY GOODMAN: You called a meeting of the executive committee of the Library Connection. And the Library Connection, what, is a consortium of the libraries of Connecticut, the internet system that you use?

GEORGE CHRISTIAN: Yes. We are owned by twenty-six libraries in the Hartford area — twenty-seven — one academic, twenty-six public. And our basic function is to provide IT services to these libraries. We run a common computer system for them, so that they can share data amongst themselves, do inter-library loans, share patron data.

AMY GOODMAN: So you decided to sue the government.

GEORGE CHRISTIAN: I decided that I was not going to participate in the violation of the Constitution, but I did want the approval of my, at least, executive board, because I — at that time, I thought that a suit against the Attorney General of the United States might cost a lot of money, and I didn’t feel I had the moral right to put their money at risk without some indication that they wanted to do this, as well.

AMY GOODMAN: Because you were gagged.

GEORGE CHRISTIAN: Because we were gagged. But fortunately, they were on board, as well, not only from constitutional point of view, but there is a long tradition. Twenty — forty-eight of the fifty states have explicit statutes guaranteeing the sanctity of patron records and mandating that librarians take active measures to preserve the security of these records, so that — federal law does trump state law, but they came from a long tradition of just saying no, without a court order.

AMY GOODMAN: I don’t know if most people think of librarians as the freedom fighters of our time, but here you four, the four librarians of Connecticut, took on the USA PATRIOT Act. This — just before this, at the time, Attorney General John Ashcroft, you sued — Alberto Gonzales, when he became Attorney General — had called librarians “hysterical,” said this wasn’t happening to libraries. And yet, while you knew it was happening, you couldn’t say it was happening.

GEORGE CHRISTIAN: Yes. That was extremely frustrating. The PATRIOT Act was up for renewal in Congress, and we at least wanted to go to Congress and tell them what had happened and ask them to redress this in the renewal. And I’m sure the gag order was maintained explicitly to prevent us from talking to Congress.

AMY GOODMAN: And so, your case was joined with Nick Merrill’s. You weren’t even allowed in the first courtroom, is that right? When your case was being heard?

GEORGE CHRISTIAN: Yes. Yes, when we first sued the Attorney General, I told our attorneys I’d like to be in the courtroom. After all, I’m the plaintiff. And they said no. They had talked to the judge. That would not be allowed, because then our identity could be guessed. But the judge did allow us to go to a courtroom in Hartford, sixty miles away, where we were locked in a room with a security guard and able to watch our case on a monitor. But as the plaintiffs, we were not allowed in the courtroom.

AMY GOODMAN: Ultimately, your gag order was lifted.

GEORGE CHRISTIAN: Yes, after the —-

AMY GOODMAN: But what happened to your case?

GEORGE CHRISTIAN: Well, after the statute was renewed, it was modified significantly in the renewal, and the appellate court ruled that we had to go back to the initial court, the circuit court, and get a new ruling. But the judge there still said the statute was similar enough that she was lifting our gag order. And the FBI -— or the Justice Department informed our attorneys they would no longer oppose us in court, although they did try to convince the court to just drop the whole thing. But the court said, nothing doing. They would allow the ruling to go ahead. So we had a judge declare our gag unconstitutional, and after that, we were free to talk.

AMY GOODMAN: Nick Merrill, you, too, did not know who these librarians were, right?


AMY GOODMAN: You knew them like you were known, as John Doe.


AMY GOODMAN: So what was it like going into court? You couldn’t be identified.


AMY GOODMAN: No one knew you were the person who was bringing this precedent-setting case.

NICHOLAS MERRILL: Right. Like the librarians, I really wasn’t able to go to court most of the time. There was one or two occasions in which I did go, where they knew beforehand that there would be a huge crowd there. When I went to the Second Circuit, there were entire law school classes there, so there was just dozens of people, and it was standing room only. But I had been instructed that I couldn’t talk to anyone. I shouldn’t even say hello to anyone. I should just kind of keep my head down and listen, if I’d like to, but just, you know, be really quiet, because, you know, I was in danger of violating the gag.

AMY GOODMAN: George Christian, you watched the case from the Hartford courthouse, when it was taking place in Bridgeport, by closed-circuit TV, because you were considered a national security threat, you and the three other Connecticut librarians, like, what, Peter Pace, head of the Plainfield library?


AMY GOODMAN: Peter Chase, sorry.

GEORGE CHRISTIAN: But we were considered — the release of our identity would be considered a national security threat, because, they reasoned then, whoever they were interested in would realize that the FBI was closing in, although, with twenty-six libraries, I doubt they could really make that a case.

We did get to attend the appellate court, along with Nick Merrill. We didn’t know at that time whether Nick was a male or a female. We were instructed to enter the courtroom in New York independently, to enter the building independently, not to sit with each other, not to have eye contact, not to have eye contact with our attorneys. But at least we could participate in the audience and watch our case being argued.



AMY GOODMAN: Yes, go ahead, George.

GEORGE CHRISTIAN: The ironic thing about our case is that the FBI so poorly redacted all the documentation in the court that the press was able, looking at the court papers, to uncover Peter Chase’s identity and my identity very early, within two weeks of the initial case. So there were countless news stories that identified us and identified Library Connection. And at the appellate hearing, our attorneys had a sheaf of newspapers, clippings, in which our names are mentioned, and they said that the gag order is just ridiculous at this point. And at the same time, the defense attorney for the government got up and moved to strike this evidence, which consisted of previously published newspaper articles, from the record. It was just totally bizarre.

AMY GOODMAN: Nick Merrill, can you talk about why you dealt with this for six years, why you were willing to go through this, the importance of speaking out?

NICHOLAS MERRILL: I believe it’s so important that people have the right to freedom of speech. You know, it’s also a constitutional matter. I mean, I grew up learning about our system of checks and balances, our Bill of Rights. And essentially, you know, it’s a total cliché, but, you know, all that’s necessary for evil to triumph is for good men to do nothing. I felt this was something I had to do. And as an internet provider or a systems administrator or a telephone technician, you have a lot of information that paints a really vivid picture about people’s personal, private lives and communications. And I believe that comes with a great degree of responsibility, that you’re essentially a steward of people’s personal and private matters, papers. So it seemed to me it was a moral obligation I had to protect the privacy of my clients.

AMY GOODMAN: You want to start a nonprofit now that would help people deal with this?


AMY GOODMAN: How many national security letters have been given out?

NICHOLAS MERRILL: Have been given out in total? I don’t know if anyone knows the answer to that. What we do know comes from an internal investigation of the Department of Justice from their inspector general. And I believe that the number is like 192,500 between the years 2003 and 2006. So it’s roughly 50,000 a year.

AMY GOODMAN: And Vermont Senator Patrick Leahy has demanded information on what’s happening now, what is the status of these national security letters.

NICHOLAS MERRILL: Yeah. I believe the Department of Justice is now voluntarily giving information to Congress about it, but there’s nothing that really prevents — I mean, there’s nothing that really compels them to do so.

AMY GOODMAN: You settled for how much with the government?

NICHOLAS MERRILL: It wasn’t that kind of a settlement. It was merely a mutual agreement that, you know, we would drop the current appeal, and they would let me partially out of the gag. I mean, there was no financial aspect to it.

AMY GOODMAN: And George Christian, why did you and the three other librarians — Peter Chase of the Plainfield libraries; Janet Nocek, the Portland Public Library director; and the Glastonbury Public Library director Barbara Bailey — why did you risk so much, gagged for so long, not being able to tell your colleagues what was happening? Why do you think this is so important?

GEORGE CHRISTIAN: We think that libraries are one of the cornerstones of a democratic society. People ought to be free to go to a library and get information that the librarians have provided. Librarians try to be impartial, but just provide quality information. And really, you ought to be able to go to a library and check anything you want, whether it’s political, whether it’s research into breast cancer or whatever, without the FBI looking over your shoulder or anyone in the community looking over your shoulder. And that’s a long tradition that librarians have had. It’s part of the Library Bill of Rights, first issued in the 1940s.

But more importantly, we all take the constitutional protections that we have for granted. And the truth is, these protections are only there as long as we’re willing to demand, that we, the public, are willing to demand, that they be enforced. It’s always tempting for those in power to encroach upon these civil liberties in the name of expediency. And if someone doesn’t stand up and say, “Hey, wait a minute,” before you know it, your liberties will be gone. We have a history in this country of reacting to any external threat by throwing the baby out with the bathwater and clamping down on our civil liberties.

AMY GOODMAN: Well, I want to thank you both —-

GEORGE CHRISTIAN: That happens in every -—

AMY GOODMAN: — for being with us, George Christian, executive director of Library Connection, consortium of the internet system of the libraries around Hartford in Connecticut, and Nick Merrill, president of the internet service provider Calyx, who filed the first court challenge to the FBI’s national security letters in 2004.

This from the Washington Post, as we move on to the primaries around the country, the Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual’s internet activity without a court order, if agents deem the information relevant to a terrorism or intelligence investigation. The administration wants to add just four words — “electronic communication transactional records” — to a list of items that the law says the FBI may demand without a judge’s approval.

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