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Court Nixes National Security Letter Gag Provision

Posted by kdawson on from the speak-we-will dept.

2phar sends news that on Monday a federal appeals court ruled unconstitutional the gag provision of the Patriot Act's National Security Letters. Until the ruling, recipients of NSLs were legally forbidden from speaking out. "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." Update: 12/16 22:26 GMT by KD : Julian Sanchez, Washington Editor for Ars Technica, sent this cautionary note: "Both the item on yesterday's National Security Letter ruling and the RawStory article to which it links are somewhat misleading. It remains the case that ISPs served with an NSL are forbidden from speaking out; the difference is that under the ruling it will be somewhat easier for the ISPs to challenge that gag order, and the government will have to do a little bit more to persuade a court to maintain the gag when it is challenged. But despite what the ACLU's press releases imply, this is really not a 'victory' for them, or at least only a very minor one. Relative to the decision the government was appealing, it would make at least as much sense to call it a victory for the government. The lower court had struck down the NSL provisions of the PATRIOT Act entirely. This ruling left both the NSL statute and the gag order in place, but made oversight slightly stricter. If you look back at the hearings from this summer, you'll see that most of the new ruling involves the court making all the minor adjustments that the government had urged them to make, and which the ACLU had urged them to reject as inadequate."

6 of 128 comments (clear)

  1. no kidding. by SinShiva · · Score: 5, Informative

    "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

    1. Re:no kidding. by icebrain · · Score: 5, Insightful

      Obama's position on civil liberties is clear. He doesn't believe in them any more than Bush did.

      His positions on liberties and freedoms are like those of most politicians. They all promote freedom to do "harmless" stuff, because it's not a threat to them or their power. But it's very rare to find one who promotes the "dangerous" ones. Being able to speak freely about and criticize the government (and call them on it when they screw up), habeas corpus, keeping and bearing arms, the right to privacy (both physical searches and observation)... those are ones that keep the government from exercising absolute control. There's a reason those things are the first things mentioned in the bill of rights, and in very clear terms; they knew the government would sooner or later try to restrict that.

      --
      The meek may inherit the earth, but the strong shall take the stars.
  2. great news by Anonymous Coward · · Score: 5, Insightful

    Well, congratulations America.
    It is very nice to see a resurgence of freedom in your country.

    The question/task for the future is to figure out how to prevent this sort of abuse from happening again.
    It has been somewhat disturbing to see how easily your executive can disregard your highest laws with impunity only to have their actions repealed years later.

    I mean, it is nice to have a constitution that declares things like a right to free speech and habeus corpus (or however that is spelled) but if the government can break that law for years without any legal sanction then is it anything but an empty statement of principles?

    George Bush has proven that the American constitution has no teeth.
    If an American president decides to break the law (any law) they cannot be stopped or punished in any way. The most that can happen is that they will be asked to stop... usually long after they have finished anyway.

    Short of kidnapping white women is there anything your president cannot do? will your police forces EVER do anything to stop a president from breaking a law?
    The answer seems to be no.

    1. Re:great news by johnsonav · · Score: 5, Interesting

      The question/task for the future is to figure out how to prevent this sort of abuse from happening again. It has been somewhat disturbing to see how easily your executive can disregard your highest laws with impunity only to have their actions repealed years later.

      Actually, this is how we prevent it from happening again. And, to be fair, it wasn't the executive abusing power. He was given it by the congress.

      Congress passes all kinds of laws which are later found to be unconstitutional by the court. The ultimate check, in our system, on the congress and president is the judiciary. How would you do it?

      George Bush has proven that the American constitution has no teeth.

      This case is an example of those teeth. Is it as timely as I would like? No. But I would rather have the correct decision after a well reasoned and thought out case, than a quick gut reflex (which is the role the congress usually plays). Assuming this decision is upheld on appeal, its now basically part of the constitution. I don't want that to be too easy or quick.

      --
      ... and that's when the C.H.U.D.'s came at me.
    2. Re:great news by johnsonav · · Score: 5, Insightful

      The President swears to uphold the Constitution, but what if he chooses not to?

      He's impeached, or his actions are ruled unconstitutional, as in this case. What do you want, a coup? Sadly, these kinds of decisions are too important to undertake quickly.

      As you point out, the worst that happens is the court eventually overrules, but often the damage has already been done and the President can just try again in a slightly modified way.

      But what remains is a more fleshed out interpretation of the constitution. After this case, these actions are explicitly unconstitutional. It should be harder for the congress and president to overreach. But you're right, you can't undo the damage. But impeachment could stop him from trying again.

      At the very least it is an impeachable offense, but only if congress has the will to impeach.

      Impeachment isn't supposed to be easy. How else do you minimize the chances the impeachment isn't politically driven, but to make it hard enough that a consensus is reached on both sides of the aisle.

      --
      ... and that's when the C.H.U.D.'s came at me.
  3. Re:Wow... by Anonymous Coward · · Score: 5, Insightful

    Apparently you are unfamiliar with the whole "separation of powers" concept. It always was the of the judicial branch to review the actions of the executive branch.

    Legislative Branch: Create/Modify laws
    Judicial Branch: Review/Interpret laws
    Executive Branch: Enact/Enforce laws

    The NSLs were one case where the Executive branch was deciding for themselves what was and wasn't legal. That's bullshit.