Error: Unable to create directory /home/demockra/public_html/wp-content/uploads/2010/09. Is its parent directory writable by the server? Circuit Court Strikes Down National Security Letters

One of the more controversial components of 2001’s USA PATRIOT Act is the expanded use of national security letters (NSLs). These are letters given by the FBI to people who have information the FBI wants. The letters, which do not require approval by a judge, amount to a combination search warrant/gag order. The letter requires the recipient to produce information about a third party, whom the FBI is investigating. The recipient is forbidden from discussing, with anyone, the nature of the information requested — but it doesn’t stop there! NSLs also forbid the recipients from even disclosing the fact that they received such an inquiry.

In 2006, an internal audit found that the FBI’s use of national security letters had increased dramatically from 2003 to 2005, and many of those letters were authorized by people who were not in a position to authorize them. In 2008, another audit revealed that the FBI was still improperly issuing NSLs, and what’s more, 60% of the letters targeted American citizens.

Well, in 2007, the ACLU decided it had had enough. It filed suit against the government on behalf of several John Does named in NSLs, alleging that the letters violated the First, Fourth, and Fifth Amendments of the Constitution, since the letters’ gag orders improperly curtailed freedom of speech without “due process of law” (that’s a Fifth Amendment guarantee that means a person cannot be deprived of “life, liberty, or property” without a trial), and the letters themselves were not issued with proper judicial authority. The U.S. District Court for the Southern District of New York agreed, rendering unconstitutional the NSL provision of the USA PATRIOT Act.

The government appealed. On Monday, the Second Circuit Court of Appeals affirmed the District Court’s decision in part. It agreed that the gag order provision violates the First Amendment because it is not “narrowly tailored” as is required by the strict scrutiny standard. It also agreed that the government, not the recipient of a NSL, has the burden of defending the validity of a gag order (under the statute, it was the recipient who had the burden of proving the gag order was not valid). The USA PATRIOT Act assumed that the government’s arguments in favor of a gag order were always correct.

With regard to the First Amendment, the Circuit Court found that the statute was overbroad specifically because the gag order does not have a temporal limitation. The government analogized the NSLs’ secrecy requirement to a jury’s secrecy requirement; however, the court disagreed, since a jury may talk about the case once it’s over, but the recipient of a NSL could conceivably be silenced forever, even long after the FBI’s investigation is over.

The court was troubled by the degree of deference to the Justice Department the USA PATRIOT Act requested of judges. I’ll let the Circuit Court speak for itself:

Assessing the Government’s showing of a good reason to believe that an enumerated harm may result will present a district court with a delicate task. While the court will normally defer to the Government’s considered assessment of why disclosure in a particular case may result in an enumerated harm related to such grave matters as international terrorism or clandestine intelligence activities, it cannot, consistent with strict scrutiny standards, uphold a nondisclosure requirement on a conclusory assurance that such a likelihood exists. In this case, the director of the FBI certified that “the disclosure of the NSL itself or its contents may endanger the national security of the United States.” To accept that conclusion without requiring some elaboration would “cast Article III judges in the role of petty functionaries, persons required to enter as a court judgment an executive officer’s decision, but stripped of capacity to evaluate independently whether the executive’s decision is correct.” Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 426 (1995).

Of course, that was the whole point of the USA PATRIOT Act: to strip from the law the requirement that a judge authorize a warrant. NSLs are designed to permit the executive, with the barest minimum of oversight (if any at all), to gather any amount of information, at any time, from any person, without the authorization of an independent third party. The Bush administration has shown that it would love nothing more than to turn judges into “petty functionaries” who are, at once, required to sign off on a warrant, giving it the appearance of third-party review (and thus legitimacy), while at the same time preventing those judges from conducting any actual, meaningful review. Bush’s Justice Department has argued that the September 11, 2001 attacks were so horrifying that the shock waves rippled through the Constitution itself, ostensibly amending it to create a parallel Constitution for “a post-9/11 world” in which the executive must have unquestionable power to arrest, detain, try, convict, and torture anyone it feels may possibly present a threat to national security. To follow the rule of law that has operated the United States for 219 years would only aid terrorists and put everyone at risk of another attack. These arguments have been refuted time and time again by courts, which — despite attempts at legislation to the contrary — still retain the authority “to say what the law is.” As it turns out, even an event as traumatic as the September 11 attacks cannot spawn into being a parallel, Bizzaro constitution that contains nearly-unlimited executive powers. There is no constitutional equivalent of a virgin birth.

Still at issue is whether or not the government is acting in good faith. Why is this secrecy necessary? Does it stem from an actual belief that disclosure of NSLs will endanger the country? Is it paranoia? Or is it something more sinister, a primitive desire for power and control? Vice President Cheney articulated “the one percent doctrine,” the idea that a 1% chance of a terrorist attack should be treated as a 100% chance of a terrorist attack. On its face, this belief is ludicrous: to be implemented properly, this policy would require a police state of the type seen only in China or the old Soviet Union. Cheney is no dummy, and must therefore understand that The One Percent Doctrine, from both a statistical, policy, and security standpoint, is foolish. Is it, then, a facile attempt to increase surveillance power?

These questions may end up never being answered; Cheney will take them with him to the grave. President Bush has no mind for complexity and thus cannot answer these questions, either. Bush is concerned about his legacy, not unlike Richard Nixon. But Bush’s mind is Cheney’s mind, and while Cheney may be as smart as Nixon was, Cheney does not have the same hang-ups about his reputation. Our only insight into the nation’s operation for eight years will be investigations upon investigations into what our government has been doing and why our government has been doing it.