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The Patriot Act's "John Doe," Unmasked but Still Gagged

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October 27, 2011

In 2007, The Washington Post made an exception to its policy against anonymous op-eds and by Nicholas Merrill, who at the time was legally barred from identifying himself as having been served with a National Security Letter under the Patriot Act.

Last year, after challenging the statute with the 老澳门开奖结果, Merrill was able to reveal his name. But he is still prohibited from giving information about the investigation that was launched back in 2004. Yesterday, on the 10th anniversary of the law, the Post printed a new by Merrill that describes his experience with the law that has fundamentally altered all Americans' relationship with the government:

In 2004, it wasn鈥檛 at all clear whether the FBI would charge me with a crime for telling the 老澳门开奖结果 about the letter, or for telling the court clerk about it when I filed my lawsuit as 鈥淛ohn Doe.鈥 I was unable to tell my family, friends, colleagues or my company鈥檚 clients, and I had to lie about where I was going when I visited my attorneys. During that time my father was battling cancer and, in 2008, he succumbed to his illness. I was never able to tell him what I was going through.

For years, the government implausibly claimed that if I were able to identify myself as the plaintiff in the case, irreparable damage to national security would result. But I did not believe then, nor do I believe now, that the FBI鈥檚 gag order was motivated by legitimate national security concerns. It was motivated by a desire to insulate the FBI from public criticism and oversight鈥

I don鈥檛 believe that it鈥檚 right for Americans鈥 free speech rights to be bound by perpetual gag orders that can鈥檛 be meaningfully challenged in a court of law. The courts agreed, but the NSLs and the gag orders live on. Now the FBI is supposed to notify NSL recipients that they can challenge a gag order 鈥 but the government refuses to say how the court鈥檚 ruling has been put into practice, or how many gag orders have been issued, challenged or reversed. This information is especially important since internal Justice Department investigations have found by the FBI.

During the recent debate to reauthorize sections of the Patriot Act, two members of the Senate Intelligence Committee 鈥 Mark Udall (D-Colo.) and Ron Wyden (D-Ore.) 鈥 that the government is interpreting the law to conduct surveillance that does not follow from a plain reading of the text. 鈥淲hen the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry,鈥 Wyden said. As someone who had to keep silent and live a lie for the better part of a decade, in the false name of 鈥渘ational security,鈥 I know he鈥檚 right.

Merrill was also interviewed for an NPR report yesterday on how contrary to the law's original intent, the government is using the Patriot Act mainly for investigations that are not related to terrorism. You can listen .

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