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If the USA PATRIOT Act had been in effect in 1971, the most dangerous man in America would be behind bars.
Instead, Daniel Ellsberg has been free for all these years. This fall, a new documentary explores how he became the world's most famous whistleblower.
Ellsberg might just be the world's most famous psychotherapy patient as well -- thanks to a 1971 crime that in today's surveillance society would be completely legal.
The story of Ellsberg's disclosures of government lies about Vietnam is told in "The Most Dangerous Man In America: Daniel Ellsberg and the Pentagon Papers." The tale includes his release of secret government documents to the public (via the media) and his subsequent arrest for espionage, theft and conspiracy.
But Ellsberg was not imprisoned. The case against him was thrown out when it was revealed that men working on behalf of the President had broken into the offices of Ellsberg's former psychiatrist, searching for personal information they could use to embarrass him into silence about the Pentagon Papers. This crime, along with other questionable government actions, freed Ellsberg from a future in prison and played a role in the downfall of Richard M. Nixon.
Mental Health Privacy At Risk
Three days after "The Most Dangerous Man in America" premiered at the Toronto International Film Festival (ironically on 9/11/09), the Department of Justice recommended renewal of three sections of the USA PATRIOT Act that are set to expire on Dec. 31. Few people realize that Section 215 -- the one that librarians and filmmaker Michael Moore made so famous -- also applies to mental health records of the kind that Ellsberg's psychiatrist would have kept in his ransacked office.
After the attacks on 9/11/01, without so much as a read-through by most if not all of our lawmakers, Congress passed the USA PATRIOT Act (aka USAPA - this law cynically twists the word "patriot," so its full acronym* is minimized here).
Had the USAPA existed in 1971, there would have been no need for Nixon's guys to commit their crime against Ellsberg. Instead, a scenario like this would have been legal:
Federal agents go to the Foreign Intelligence Surveillance Court, which works in secret with little oversight. They tell the judge they need to access Dr. Lewis Fielding's records about his former patient, Daniel Ellsberg. They say it's related to terrorism and conspiracy, but they don't have to show any documentation. The court, which rarely says no, rubber stamps the request. Federal agents then walk into Fielding's office with a demand for records. Because the term "business record" is broadly defined and does not clearly protect psychotherapy notes, Dr. Fielding has little legal recourse, other than consulting an attorney, without going to jail himself. A gag order prevents him from telling Ellsberg that his confidentiality has been breached. The earliest the psychiatrist can say anything to him at all is a year after the fact. The government prosecutes Ellsberg, winning the case. He is thrown into prison as a terrorist and traitor, receiving a sentence of up to 115 years.
In 1971, however, there was no USA PATRIOT Act. To avoid being seen or caught, Nixon's burglars sneaked into Fielding's office over Labor Day weekend, after weeks of surveillance to determine the psychiatrist's habits. Almost two years later, at Ellsberg's trial, the government's law-breaking was revealed, playing a definitive role in blowing their case. Ellsberg and his co-defendant were set free.
Concerns about Section 215
In the fall of 2001, five psychotherapists discussed concerns about a number of issues triggered by the attacks on the World Trade Center and the Pentagon. They particularly focused on the pervasiveness of government-engendered paranoia, the risk to civil liberties for their patients and themselves and the impact of repression on their work, especially in the San Francisco Bay Area with its culture of political activism. They were also acutely aware that Arab Americans and people of Middle Eastern descent, who were already being arbitrarily detained for questioning or extra-legal rendition, would be targeted more than most.
These mental health professionals quickly realized that Section 215 of the USAPA poses a threat to confidentiality that could affect people receiving counseling for life problems. With the increasing medicalization of mental health, they understood that the issue is even more problematic for the growing number of people who use their insurance "benefits" for psychotherapy. Insurance reimbursement requires the assignment of a clinical diagnosis of mental illness and increases the exposure of patient information beyond a single clinician. Furthermore, Section 215 can be used to access personal information directly from insurance companies, unbeknownst to practitioner or patient.