Click on image to read the diagram.
A federal court has ruled that the Obama administration must reveal portions of the evidence it has relied on to justify its continued gag order on an Internet service provider (ISP) that the FBI served with a national security letter (NSL) more than five years ago.
The ruling, which requires the government to produce an unclassified summary of that evidence as well as a redacted version of a secret declaration it filed in June, came in a lawsuit brought by the American Civil Liberties Union and the New York Civil Liberties Union on behalf of the ISP.
Under a Patriot Act provision, the FBI uses NSLs to demand personal customer records from ISPs, financial institutions and credit companies without prior court approval. The FBI routinely imposes gag orders on NSL recipients which prohibit them from disclosing information about the FBI’s demand for sensitive customer records.
“The government’s reliance on completely secret evidence to justify this five-year-old, unconstitutional gag order undermined our John Doe client’s right to a fair process,” said Melissa Goodman, staff attorney with the ACLU National Security Project. “The court was right to find that the government cannot continue to silence Doe based entirely on evidence we are not even allowed to see, let alone given a meaningful opportunity to refute.”
Because the FBI imposed a gag order on the ISP, the lawsuit, now called Doe v. Holder, was initially filed under seal, and even today the ACLU is prohibited from disclosing its client’s identity. The FBI continues to maintain the gag order even though the underlying investigation is more than five years old and even though the FBI abandoned its demand for records from the ISP over two years ago.
In December 2008, the U.S. Court of Appeals for the Second Circuit ruled that parts of the NSL statute’s gag provisions were unconstitutional, specifically the sections that wrongly placed the burden on NSL recipients to challenge gag orders, narrowly limited judicial review of gag orders and required courts to defer entirely to the executive branch.
The court of appeals sent the case back to the U.S. District Court for the Southern District of New York and ordered the government to finally justify the constitutionality of the gag on Doe. In June 2009, the government submitted its justification for the gag on Doe entirely in secret, in a classified declaration that even Doe’s ACLU attorneys couldn’t see.
On Wednesday, the district court ordered the government to produce an unclassified summary of the evidence it is relying on to justify the continued gag on the ISP, as well as a redacted version of the declaration it filed in June.
“The court’s important ruling will have ramifications far beyond this case,” said Jameel Jaffer, Director of the ACLU National Security Project. “Every year, the FBI serves thousands of national security letters and virtually every one of those letters comes with a gag order. As this ruling makes clear, NSL recipients are entitled to a meaningful opportunity to challenge these gag orders in court.”
Thanks, Jason, for publicizing this very important case. Many might believe that with the ascension of Obama that the horrors of the Patriot Act and other attacks on our civil liberties are a quaint item from the past. That is hardly the case, and hopefully the American people will wake up soon to the fact they have an Executive Branch that is out of control and threatens whatever shreds of democracy are left in this country.
I read today’s The Public Record and decided to donate, to keep this kind of reporting alive. I hope others to this as well, or do so when they are able. This is a totally unsolicited appeal, though I admit I’ve been a contributor to content on this site. I make this appeal for the same reason I sometimes send content (with no remuneration, so this appeal is not self-serving), because I believe this site, along with a handful of others on the net, offers crucial news and analysis that simply isn’t available anywhere else.
Any gag order which prevents any method of contesting it, IS unconstitutional. What if they were asking for the records of a Congressman or Senator, or someone they were having an affair with? You couldn’t go to the press and you couldn’t go to the courts. They could sweep up all this blackmail information without ever worrying about their paper trail being discovered.
At a minimum the gag order must expire in a reasonable time. How long does it take to prove someone is a threat? If 90 days is not enough, then the requesting agency must go in front of a judge to explain why?
This is not about terrorism, it is about embarrassment. When people start finding out who is being monitored they will see a pattern. This pattern could be as innocuous as indicating a high level of incompetent judgment being shown by the investigators, or it could reveal much darker motives for selecting their targets.
The unlimited gag order limits any interference from this messy democratic process.
The Constitution gave congress considerable powers over the administrative branch. After Watergate the Congress began making laws that would automatically assert their authority over the administrative branch. Congress recognized that a singular administrator could fragment and divide a congress and so it created laws in Watergate’s aftermath that were the first attempts to codify the Constitutions balance of power. If congress were politically co-opted, the courts could then enforce the law, (and by extension the authority), over the administrative branch.
Except the courts were co-opted too. The unexamined state secrets defense has given the administrative branch a club to beat down or delay the Congress and the Courts. We now stand at the edge of the tyrannical abyss, but that is a secret that the American Courts are all too willing to keep until democracy is in it’s grave.
Louis P. Quinn