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Court sides with ACLU, strikes down Patriot Act gag provision
- Text size
Stephen C. Webster
Raw Story
December 16, 2008
A federal appeals court ruling late Monday is the cause célèbre of the American Civil Liberties Union, as another provision of the Bush administration’s Patriot Act falls to the judicial system.
Until the ruling, recipients of so-called “national security letters” were legally forbidden from speaking out. The letters, usually a demand for documents, or a notice that private records had been searched by government authorities, were criticized as a cover-all for FBI abuses.
“The appeals court invalidated parts of the statute that wrongly placed the burden on NSL recipients to initiate judicial review of gag orders, holding that the government has the burden to go to court and justify silencing NSL recipients,” said the ACLU in a release. “The appeals court also invalidated parts of the statute that narrowly limited judicial review of the gag orders – provisions that required the courts to treat the government’s claims about the need for secrecy as conclusive and required the courts to defer entirely to the executive branch.”
Because of the ruling, the government will now be forced to justify individual gag orders before a court, instead of casually wielding the power of a blanket gag as the Bush administration has done since the blindingly fast passage of the Patriot Act in Oct. 2001.
In Sept. 2007, a federal judge ruled unconstitutional provisions within the Patriot Act which allowed the government to obtain search warrants without probable cause.
The ACLU’s complete press release follows.
####
FOR IMMEDIATE RELEASE
December 15, 2008
NEW YORK – A federal appeals court today upheld, in part, a decision striking down provisions of the Patriot Act that prevent national security letter (NSL) recipients from speaking out about the secret records demands. The decision comes in an American Civil Liberties Union and New York Civil Liberties Union lawsuit challenging the FBI’s authority to use NSLs to demand sensitive and private customer records from Internet Service Providers and then forbid them from discussing the requests. Siding with the ACLU, the U.S. Court of Appeals for the Second Circuit found that the statute’s gag provisions violate the First Amendment.
- A d v e r t i s e m e n t
“We are gratified that the appeals court found that the FBI cannot silence people with complete disregard for the First Amendment simply by saying the words ‘national security,’” said Melissa Goodman, staff attorney with the ACLU National Security Project. “This is a major victory for the rule of law. The court recognized the need for judicial oversight of the government’s dangerous gag power and rejected the Bush administration’s position that the courts should just rubber-stamp these gag orders. By upholding the critical check of judicial review, the FBI can no longer use this incredible power to hide abuse of its intrusive Patriot Act surveillance powers and silence critics.”
The appeals court invalidated parts of the statute that wrongly placed the burden on NSL recipients to initiate judicial review of gag orders, holding that the government has the burden to go to court and justify silencing NSL recipients. The appeals court also invalidated parts of the statute that narrowly limited judicial review of the gag orders – provisions that required the courts to treat the government’s claims about the need for secrecy as conclusive and required the courts to defer entirely to the executive branch.
“The appellate panel correctly observed that the imposition of such a conclusive presumption ignored well-settled First Amendment standards and deprived the judiciary of its important function as a protector of fundamental rights,” said Arthur Eisenberg, Legal Director for the New York Civil Liberties Union.
In this regard, the opinion stated: “The fiat of a governmental official, though senior in rank and doubtless honorable in the execution of official duties, cannot displace the judicial obligation to enforce constitutional requirements.”
The court, therefore, also ruled that the government must now justify the gag on the John Doe NSL recipient in the case, a gag that has been in place for more than four years.
The ACLU and New York Civil Liberties Union filed this lawsuit in April 2004 on behalf of an Internet Service Provider (ISP) that received an NSL. Because the FBI imposed a gag order on the ISP, the lawsuit was 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 four years old (and may well have ended), and even though the FBI abandoned its demand for records from the ISP over a year and a half ago.
In September 2004, Judge Victor Marrero of the U.S. District Court for the Southern District of New York struck down the NSL statute, ruling that the FBI could not constitutionally demand sensitive records without judicial review and that permanent gag orders violated the First Amendment guarantee of free speech. The government appealed the ruling, but Congress amended the NSL provision before the court issued a decision.
The ACLU brought a new challenge to the amended provision, and in September 2007, Judge Marrero again found the statute unconstitutional.
Bills aimed at bringing the NSL authority back in line with the Constitution were introduced last year in both the House and Senate after reports had confirmed and detailed the widespread abuse of the authority by federal law enforcement. Since the Patriot Act was passed in 2001, relaxing restrictions on the FBI’s use of the power, the number of NSLs issued has seen an astronomical increase, to nearly 200,000 between 2003 and 2006. A March 2008 Office of Inspector General (OIG) report revealed that, among other abuses, the FBI misused NSLs to sidestep the authority of the Foreign Intelligence Surveillance Court (FISC). In one instance, the FBI issued NSLs to obtain information after the FISC twice refused its requests on First Amendment grounds. The OIG also found that the FBI continues to impose gag orders on about 97 percent of NSL recipients and that, in some cases, the FBI failed to sufficiently justify why the gag orders were imposed in the first place.
In addition to this case, the ACLU has challenged this Patriot Act statute multiple times. One case was brought on behalf of a group of Connecticut librarians and another case, called Internet Archive v. Mukasey, involved an NSL served on a digital library in California. In the latter case, the FBI withdrew the NSL and the gag as part of the settlement of a legal challenge brought by the ACLU and the Electronic Frontier Foundation.
Attorneys in Doe v. Mukasey are Jameel Jaffer, Goodman and L. Danielle Tully of the ACLU National Security Project and Eisenberg of the NYCLU.
Today’s decision can be found online at: www.aclu.org/safefree/nsaspying/38110lgl20081215.html
More information on Doe v. Mukasey and NSLs is available online at: www.aclu.org/nsl
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December 16th, 2008 at 11:02 am
FINALLY SOME GOOD NEWS !
December 16th, 2008 at 11:10 am
Guilty until found innocent.
Big brother will decide if you are innocent.
Even Santa Claus does not go to such great lengths to know if you are naughty or nice.
Except the guy in Texas who’s daughter asked Santa to have a family member to quit touching her.
If it had not been for them reading the mail, Santa would have had to stick a cane up his….
December 16th, 2008 at 11:31 am
Hey, #1, here there’s a different mentality. Here people see the banking cartel as representative of the American way. Here people have drank the “American way” Kool Aid. Here people are politically ignorant. People don’t even know that the Fed is a PRIVATE banking cartel NOT part of the federal government.
With regards to the court decision: have you noticed how now that this administration is on its way out, the courts are starting to undo the legal mess?
It is no coincidence. It is a clear sign that the judges must either have been threatened or provided money to go along with the administration, or both.
How can the same judges rule so differently about the same issues? It is NOT that the ‘presentation’ of the arguments was different. The LAW is about INTERPRETATION, even your ‘mood’ affects your interpretation.
Nah, the judges were accomplices. Now they play with the new Leader. The judges are like weather vanes.
December 16th, 2008 at 11:35 am
This is great. Lets hope people start coming out and talking about this corrupt s--- piles.
December 16th, 2008 at 11:36 am
… and many years from now, lying in your beds will you be willing to trade all the days from this one til then for one chance Just ONE Chance to tell our enemies that they may take our lives but they may NEVER take our FREEEEDOM!
http://www.TacticalWarfighterGear.com
December 16th, 2008 at 11:53 am
delphi, your an idiot. go enjoy some pop tarts and television you fat piece of s---
December 16th, 2008 at 12:04 pm
Yeah, where are the William Wallace of our day? Sons of the Republic your country is dying where are you? Run and youll live at least a while.
http://www.RangerMade.US
December 16th, 2008 at 12:06 pm
Bravo! Bravo! Can we have a second helping please? Perhaps 3rds or more… The last decade has brought in numerous corrupt amendments, and acts et cetera. We definately need more of this; much much more!
December 16th, 2008 at 12:18 pm
Glad I see some better news!
December 16th, 2008 at 12:20 pm
#6
thats a quote from bravehart which brings a tear to my eye every time i watch it!!
i watch it alot
btw i think it might be time for rob-n-hood type actions. steal from the rich give to the poor!
in my home town lots of people gettin laid off . they are hungry and cold cause they cant pay the bills. for sum reason i dont think the govt is going to bail these people out. they will be left to starve or freeze to death. these are really nice people and dont deserve a horrible death.god save the meek from their horrible masters!!!!
December 16th, 2008 at 12:28 pm
A small victory for the people. A small victory for freedom. I’m so tired of government officials
hiding their corruption under the guise “National Security”, “Executive Priviledge”, etc.
Does this mean Sibel Edmonds can talk now?
December 16th, 2008 at 12:48 pm
Well what’ll ya know, for once somethin’ good came out of that slippery pack of weasels.
December 16th, 2008 at 1:13 pm
This is wonderful! A small step in the right direction.
December 16th, 2008 at 1:57 pm
Rather than “steal from the rich to give to the poor” How about just taking back what is OURS?
There is no such thing as “government funds” it is OUR money and should not be used to repair stupidity. We have long since removed the death penalty from the crime of stupidity, and stupidity should be fatal whether we are talking economically or physically. THROW THE BUMS OUT ONE AND ALL.
- To those who have fought for it, freedom has a special taste the protected will never know.
December 16th, 2008 at 2:44 pm
I have researched 8 presidents back to Jfk and I have concluded that every president has went through a major crisis ….. When clinton came to power the first Major terror attacks began against the US, Obama will also go through a major crisis , whether it be economic , terror attacks or both . I think it will be Something very overwhelming and hard to deal with so everyone get prepared !!!! Alex thanks for the preperation , I am happy that I am mentally prepared for the future ! Check out the research I have done and please support my cause !
http://posmedprod.webs.com/presidentialhistory.htm
December 16th, 2008 at 2:58 pm
kucinich and ron paul have tried to out sum of these bassterds met with failure so wat do u propose we do FDBRATT?
I KNOW IT IS THE RIGHT OF THE PEOPLE TO DISSASEMBLE AND REASSEMBLE THE GOVT.
but as of right now i stand alone, and there i stand until a resistance forms.
December 16th, 2008 at 3:50 pm
Thank you ACLU.ORG. all a member. become a member of the aclu.org .
December 16th, 2008 at 3:57 pm
one down ,millions to go. finally something good to talk about. good people does exist.
peace all.
December 16th, 2008 at 4:05 pm
Oh liberty. I see her every morning on the way to work. sitting in the Hudson river looking so pretty. This is a ground breaking move for future humanity. Spread the news to everyone. People love to be apart of a winning movement, to benefit all. I always thought a ACLU was con job working for the elite government. well i was wrong. Thank you all
December 16th, 2008 at 5:09 pm
The ACLU does “some” good, however THEY STILL SUPPORT THE ILLEGAL ALIEN INVASION, SO I CAN’T FULLY SUPPORT THEM!
THIS IS FACT! They want to stop enforcement of illegal immigration, and they want to stop workplace raids.
Shameful
December 16th, 2008 at 6:20 pm
I say repeal the whole Patriot Act.Restore Constitution.
December 16th, 2008 at 7:58 pm
The ACLU does not defend the Second Amendment as strongly as it defends some other amendments. Why? If your Second Amendment right was fully enforced, would you need the ACLU to protect your other rights? No. The ACLU and other half-baked civil rights groups do not want you to have full authority on your own life. They crave control over your existence because they want you to depend on them for your defense. The NRA is a much better civil rights defender than the ACLU. And even the NRA would be useless if the 2nd Amendment was simply respected.
Pack a gun and pay no taxes.
December 16th, 2008 at 8:31 pm
“THEY STILL SUPPORT THE ILLEGAL ALIEN INVASION, SO I CAN’T FULLY SUPPORT THEM!” so are you saying you hate you grandparent and fore-father of the nation?.
December 16th, 2008 at 11:32 pm
I’d still like to see the real violators of our liberties served with swift justice. The ones who staged 9/11 and shoved two versions of an illegitimate “Patriot Act” down our throats should be hanging by the neck from Lady Liberty’s Lamp for the whole world to see.
December 17th, 2008 at 1:01 am
for liberty! At last we’ve received a decent voice! f--- the bureacracy and bring back the constitution!
December 17th, 2008 at 8:47 am
This latest “minor victory” on behalf of those victimized by the Patriot Act is like boasting they improved the cafeteria prison menu. The fact is, we are still prisoners in our own land while the government runs amok. My greater concern than even this deliberate and systematic destruction of the US Constitution is the nearly-ratified vote for a consitutional congress. 32 of 34 states required have already voted for it, while most of us have no idea this is happening or what it means. In short, a constitutional congress is called to fundamentally change the way our government operates, and our part in it. During the last such congress in 1787, they created the US constitution– one guess what they plan to do this time around.
December 17th, 2008 at 4:57 pm
So just when they are about to leave the courts decide that this can not be tolerated. WOW Sheeple pf Amrica what a slap in the face by these courts and then they have the audacity of framing it as a victory for civil rights and the constitution, Remember the Bush regime was appointed by the Supremem court. It’s incredible but admirable how they play with reality.
December 17th, 2008 at 8:32 pm
22 Vickie Says:
December 16th, 2008 at 6:20 pm
I say repeal the whole Patriot Act.Restore Constitution.
I second that. And then repeal the unPatriot act 2, the Military Commissions Act, etc.
December 17th, 2008 at 9:14 pm
Seems like little “victories” like this are being reported on the news merely to make things appear to be improving, to make it seem as though the right things are still being done and high collar criminals are being arrested and thereby we are still in control of this nation…I think that is the message they are trying to send out like there is a great cleanup of corruption taking place, to keep the illusion of democracy alive it’s important that people don’t know that they have no say whatsoever in what happens in their lives but merely have reasons to think they do and that the government isn’t all corrupted and bad.
March 3rd, 2009 at 8:17 pm
f--- Gag Orders, take the judges, and 1 by 1 cut their f---ing throats on pay per view.