Patriot Act Gag Power is Unconstitutional, ACLU Tells Court

August 15, 2007 12:00 am

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NEW YORK – The American Civil Liberties Union appeared before a federal district court today to argue that the reauthorized Patriot Act’s National Security Letter (NSL) provision is unconstitutional. The law permits the FBI to gag those who receive NSLs from disclosing that the FBI has sought or obtained information from them.

“The excessive secrecy surrounding the FBI’s use of national security letters is an invitation to abuse,” said Jameel Jaffer, Director of the ACLU’s National Security Project, who argued before the court today. “While secrecy may be necessary in rare cases, the FBI’s power to silence the recipients of national security letters should be subject to meaningful judicial oversight. The FBI cannot be given exclusive authority to determine which NSL recipients should be silenced and which should be permitted to speak.”

The case before the court today, Doe v. Gonzales, was originally filed in April 2004 on behalf of an anonymous Internet access company that had received an NSL. Although the FBI has since dropped its NSL demand, the John Doe remains under a gag order. In September 2004, Judge Victor Marrero of the U.S. District Court for the Southern District of New York struck down the Patriot Act NSL provision as unconstitutional, writing that “democracy abhors undue secrecy.” The landmark ruling held that permanent gag orders imposed under the NSL law violated free speech rights protected by the First Amendment.

The government appealed the ruling, but Congress amended the NSL provision before the court issued a decision. In May 2006 the appeals court asked the district court to consider the constitutionality of the amended law. In a concurring opinion, Judge Richard Cardamone strongly criticized the government for continuing to argue that a permanent ban on speech would be permissible under the First Amendment.

The ACLU argued before Judge Marrero today that the gag provision in the amended NSL statute violates the First Amendment by giving the FBI the authority to suppress speech without prior judicial review. The ACLU also argued that the provision is unconstitutional because the judicial review it allows is illusory: while the amended statute permits NSL recipients to challenge gag orders in court, the provision requires courts to defer to the FBI’s view that secrecy is necessary.

The ACLU said that the gag provision has had significant effects on the John Doe plaintiff. John Doe was prevented from participating in the contentious Patriot Act reauthorization debate that raged across the nation in late 2005 and early 2006. Even though Doe had firsthand knowledge of this sweeping FBI power, John Doe could not mention the fact that Doe had received an NSL, divulge the breadth of the letter, or discuss the ramifications on Doe’s business relationships.

“The executive branch cannot suppress speech without any real judicial check on its gag power,” said Melissa Goodman, an ACLU staff attorney on this case. “Without oversight, there is nothing to stop the government from engaging in broad fishing expeditions, or targeting people for the wrong reasons, and then gagging Americans from ever speaking out against potential abuses of this intrusive surveillance power.”

According to documents released last month, Attorney General Alberto Gonzales lied to Congress in order to make a case for reauthorization of the Patriot Act in 2005. The Attorney General testified that he was unaware of any civil liberties abuses that had taken place with the use of NSLs. But contrary to Gonzales’ testimony, internal FBI documents show he was briefed about the abuses.

While reports previously indicated a hundred-fold increase to 30,000 NSLs issued annually, an extraordinary March 2007 report from the Justice Department’s own Inspector General puts the actual number at over 143,000 NSLs issued between 2003 and 2005. The same investigation also found serious FBI abuses of the NSL power and numerous potential violations of the law.

In a similar case, the ACLU represented four librarians who are on the board of Library Connection, a library consortium in Connecticut. The consortium was served with a NSL and challenged both the letter and the accompanying gag. After many months of litigation in which a district court found the gag on Library Connection was unconstitutional, the government withdrew its demand for information and abandoned the gag order.

More information on Doe v. Gonzales and NSLs is online at:

Attorneys in the case are Jaffer, Goodman and Alexa Kolbi-Molinas of the ACLU, and Arthur Eisenberg of the New York Civil Liberties Union.

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