Court Rules FBI National Security Letters Unconstitutional
The FBI can’t stop National Security Letter recipients from discussing them, the U.S. District Court for Southern New York ruled Thursday, striking down the Patriot Act’s NSL provision in its entirety. Such gagging is “unconstitutional under the First Amendment because it functions as a licensing scheme that does not afford adequate procedural safeguards, and because it is not a sufficiently narrowly tailored restriction on protected speech,” Judge Victor Marrero said in the order. Since the NSL provision’s gagging aspect “cannot be severed” from the statute, the court found the entire law unconstitutional under the First Amendment and separation of powers doctrine.
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The court enjoined the U.S. attorney general, the FBI director and the FBI general counsel from issuing NSLs and enforcing NSL gags. “A compelling need exists to ensure that the use of NSLs is subject to the safeguards of public accountability, checks and balances, and separation of powers that our Constitution prescribes,” Marrero said, citing “the seriousness of the potential intrusion into the individual’s personal affairs and the significant possibility of a chilling effect on speech and association -- particularly of expression that is critical of the government or its policies.”
The government has 90 days to appeal or pursue “any alternative course of action,” Marrero ordered. “The stay is intended to give the Government the opportunity to move this Court, or the Court of Appeals, for whatever appropriate relief it may seek to maintain the confidentiality of any information implicated by the Court’s ruling,” he said.
Marrero cited slavery and World War II internment cases Plessy v. Ferguson and Korematsu v. U.S. in the order. “These examples, however few in number, loom large in proportions of the tragic ill-effects felt in the wake of the courts’ yielding fundamental ground to other branches of government on the constitutional role the judiciary must play in protecting the fundamental freedoms of the American people,” he said. “Viewed from the standpoint of the many citizens who lost essential human rights as a result of such expansive exercises of governmental power unchecked by judicial rulings appropriate to the occasion, the only thing left of the judiciary’s function for those Americans in that experience was a symbolic act: to sing a requiem and lower the flag on the Bill of Rights.”
The American Civil Liberties Union lauded the ruling. “Courts have a constitutionally mandated role to play when national security policies infringe on First Amendment rights,” said Jameel Jaffer, director of the ACLU’s National Security Project. “A statute that allows the FBI to silence people without meaningful judicial oversight is unconstitutional.”
The decision was no surprise, said Sen. Russ Feingold (D-Wis.). “The Justice Department’s Inspector General has already found that the NSL authorities have been seriously abused by the government, and now a federal court has found parts of those authorities unconstitutional,” he said. “Congress needs to fix the mess it created when it gave the government overly-broad powers to obtain sensitive information about Americans.” Rep. Jerrold Nadler (D-N.Y.) said the “ruling is an affirmation of the rule of law of checks and balances, and the separation of powers.”