November 2005

It's Fundamental: Democracy, Justice, and America's Courts

by S. Brooke Taylor, WSBA President

Deming is a rural community in eastern Whatcom County. You will find it approximately 18 miles east of Bellingham on Highway 542. Home to a few hundred residents, this traditional logging town boasts the Deming Logging Show, Mount Baker High School, The Nooksak River Casino, and the Deming Library, one of several branch libraries in the Whatcom County Library System. It is at the Deming Library where our story begins.

The citizens of Deming are proud of their relatively new library, as well they should be, since they made it happen. Despite the need and the desire for a library, the Whatcom County Library System could not afford to build a new branch, so the citizens of Deming raised the money themselves.

One of many volumes to be found in the Deming Library is a book entitled Bin Laden: The Man Who Declared War on America, written by Yossef Bodansky. While reading this book, a regular patron discovered some disturbing marginal notations made by a previous reader, praising the mission of the terrorist mastermind. He turned the book over to local law enforcement authorities, who brought in the FBI.

On June 18, 2004, an FBI agent entered the library, approached the front desk attendant, and requested records showing the identity of all those who had checked out Bin Laden since November 15, 2001. The library attendant, citing established written protocols regarding the confidentiality of customer records, refused the request, and contacted library system Director Joan Airoldi. The director in turn contacted the library system's counsel, Deborra Garrett, a partner in the firm of Zender Thurston, PS in Bellingham. Ms. Garrett had worked with the director and library board to establish the written privacy protocols in question, and the director asked her to contact the FBI agent directly for further information.

Ms. Garrett contacted the FBI agent, who explained what he was looking for, and why, and read to her the marginal note in the book which was the cause for concern. The library system's written protocols were explained to the agent, together with the need for a subpoena to make a proper request for the records. A few days later, the agent returned with a grand jury subpoena for the same records, and served it on Deborra Garrett, as she had requested.

At this point, the executive branch of our government is seeking private records in which the library customers have a reasonable expectation of privacy. The records are sought as evidence in a legitimate anti-terrorism investigation using powers granted by our elected representatives in the legislative branch. The library system has only the judicial branch for protection against what it sees as government overreaching and invasion of the rights of its patrons.

Deborra Garrett went to work. Her research convinced her that the government's demand for records, on these facts, was trumped by the citizen's right to privacy. She determined that the request for records was an invasion of fundamental privacy rights guaranteed by the First Amendment, and that the standards required to compel disclosure had not been met. She filed a motion and brief to quash the subpoena, and the subpoena was voluntarily withdrawn by the U.S. Attorney's Office before a hearing could be held.

It should be noted at this point that no disrespect is intended for the FBI or the U.S. Attorney's Office. To the contrary, Deborra Garrett herself will tell you that both the FBI agent and the assistant U.S. attorney with whom she dealt were courteous, reasonable, and professional in all her dealings with them. In fact, the assistant U.S. attorney presumably made a conscious decision not to employ the extreme powers afforded by the Patriot Act to obtain these records. This is not surprising, considering the reputation which the Office of the U.S. Attorney for the Western District of Washington enjoys for integrity and professionalism. They were just doing their job, and an attorney in private practice was doing hers.

This is a story of one courageous lawyer who undertook the task of protecting the rights of citizens who probably never knew their privacy was threatened. This is a story of one lawyer who took on the government and prevailed, with great determination, and little fanfare. In doing so, she provided all of us with another example of the "Four Corners of Freedom." The rule of law carried the day. The separation of powers was maintained. Checks and balances were applied. And the very existence of a strong, independent judiciary made it happen. The fact that no judge actually had to rule in this case is not important. What is important is that a strong, independent judge was available, and both parties knew it. What is important is that two good lawyers, representing their respective clients with diligence and reason, achieved that balance so essential to the survival of our democracy and our freedom.

I have never been to Deming, but I feel like I have. It is like a thousand other communities across our nation where stories such as this are played out daily by lawyers just doing their jobs, and in the process, highlighting the beauty of our system. Deborra Garrett was awarded the WSBA Local Hero Award at a meeting of the Board of Governors held in Bellingham on July 29, 2005, a tradition started in 2000 by former WSBA President Jan Eric Peterson as part of his "Proud to Be a Lawyer" campaign. The goal of this campaign is to recognize those lawyers who exemplify the best our profession has to offer without ever drawing much attention to themselves. In this case, Deborra Garrett made us all proud to be lawyers.

The Deming Library story, like the Terri Schiavo case discussed in the October issue of Bar News, is an easily understood example all of us can employ to explain to others these fundamental principals that lay at the core of our democracy: The rule of law, separation of powers, checks and balances, and judicial independence. We only need to read the excellent article by retired Justice Robert F. Utter, found in this issue, describing the heroic efforts by Iraqi judges to establish something similar in their war-torn country, to appreciate how truly precious our system is, and why it is the envy of others around the world. It is our duty as lawyers and judges, privileged to work in this system, to make sure that it is fully understood, and never taken for granted.  

Brooke Taylor may be reached at 360-457-3327 or sbtaylor@plattirwintaylor.com. If you would like to write a letter to the editor on this topic, please e-mail it to letterstotheeditor@wsba.org or mail it to WSBA Bar News, Attn: Letters to the Editor, 2101 Fourth Ave., Ste. 400, Seattle, WA 98121-2330.