The NSL power allows the FBI to demand personal customer records from Internet service providers, libraries and others. An NSL can demand that an ISP turn over records of the Web sites you visit, internet searches you conduct, or all the e-mail addresses you have sent messages to, without prior court approval. The statute also allows the FBI to forbid or “gag” anyone who receives an NSL is from telling anyone about the record demand.
What that means is that the FBI can demand this sensitive information and gag people left and right, all on its own say-so — without having to ask a court’s permission. It also doesn’t allow a courts to decide whether each particular gag is unconstitutional. The only entity that has to certify the request is the FBI itself. The revised Patriot Act gag provision put the burden on NSL recipients to go to court to challenge gag orders and forced the courts to blindly defer to the government’s claim that secrecy was necessary.
Judge Marrero found the gag power violated the constitutional right to free speech. He also ruled that the judicial review of the gag orders was not sufficient and violated the principle of separation of powers. Because the gag orders could not be separated from the overall NSL provision, he ruled the whole thing illegal.
The most important thing about the ruling is that it reaffirms that courts have a vital role to play in protecting civil liberties. Judge Marrero is saying that you can’t automatically throw out checks and balances, and constitutional rights, just because the FBI (or some other agency) says it is doing something in the name of national security. Most importantly, Marrero ruled, the courts can’t be cut off at the knees: Congress can’t prohibit courts from applying the First Amendment, and it can’t force the courts to blindly defer to the government.
…the Constitution erected interlocking barriers in the form of checks and balances embodied in various provisions. For the Framers, manifesting both the concerns that motivated the governmental blueprint they drafted, and the genius and wisdom of their unique plan, realized that absent such critical separations, the system would face constant peril in the event all power were concentrated…That prospect, in the Founders’ fears, amounted to a license for abuse of power and potential tyranny, dangers likely to be paid for with the liberties of a free people.
In this essential tenet, in maintaining the delicate checks and balances and separation of powers among its constituent branches at all times, rests the integrity and survival of our nation’s form of government. To guarantee that lasting stability demands that each branch honors its own bounds of authority, and those of the others. The courts, of course, cannot legislate or administer executive offices. By the same token, Congress and the executive must abide by the rule of law, in times of domestic tranquility and of national crisis, in war and in peace.
Morrero’s ruling is resonant not just for NSLs, but other abuses like the NSA’s illegal spying program.
This is one of two NSL cases I have worked on. The other case was on behalf of Library Connection, a consortium of 26 Connecticut libraries that received an NSL demanding library patron records. In that case, after Congress amended the Patriot Act in 2006 the government withdrew the NSL and lifted the gag. The librarians were the first, and so far the only, recipients of an NSL to be allowed to speak publicly. But it was too late: the Patriot Act amendment debate was already over. Instead, Congress only got to hear from government officials who claimed erroneously that the government was not using the Patriot Act to get library records and that NSLs were being issued lawfully.
Judge Marrero, in his compelling, thoughtful opinion reminds us of something quite basic: if you give the government expansive and intrusive surveillance powers, it can use in total secrecy and without judicial oversight, you are inviting abuse. This has already proven true with NSLs. Earlier this year Glenn A. Fine of the Office of the Inspector General (OIG) issued a scathing report that found that the FBI had severely abused the NSLs in a routine fashion. Between 2003 and 2007, the government issued at least 140,000 NSLs. That’s up from only 8,500 requests in 2000, the year prior to the Patriot Act. At the request of the Senate Judiciary Committee, Fine is now investigating former Attorney General Alberto Gonzales’ “potential misleading, evasive or dishonest testimony” before Congress. But unless the NSL provision, which allows for an unconstitutional gag, is removed it is only the voice of the misleading and dishonest that we will get to hear.
In his decision Judge Marrero asks:
What would deter the legislative branch, dispensing with niceties and formalities altogether, from eventually superseding the standards of review the courts have devised for application in deciding First Amendment disputes — the concept of strict scrutiny, for example — and formulating its own rules to govern such judicial oversight?
These concerns may be readily dismissed as protesting too much, as conjuring remorse, unduly alarmist parade of horrors. But those who are inclined, for the risk of the moment, to give chance a chance by wagering against the improbably, should consult history for its guidance as to what the roll of the dice may hold in predictable situations. The past is long, and so is the future we want to protect. But too often memory is short.
I hope the FBI takes the long view for the next 90 days (the length of time the judge’s opinion will be stayed) and that Congress, too, will consider history when it ponders whether or not to fix the unconstitutional provisions of the Patriot Act. We also hope that at the end of those 90 days John Doe, the plaintiff in this case, will be allowed to speak. Doe has been living under an NSL gag order for more than three years even though the FBI gave up its effort to secure the records it was seeking in the first place.
At the end of the day, this ruling articulates a critical principle that bears repeating — national security cannot be used as a blanket excuse for the abuse of executive power. Today Judge Marrero ruled that our nation is built on the three branches of government, one who makes the law, one who executes the law and another who interprets the law — but none who are above it.