December, 15 2008, 02:21pm EDT
Court Rules Patriot Act's 'National Security Letter' Gag Provisions Unconstitutional
ACLU Hails Victory in Challenge to Government’s Power to Silence NSL Recipients
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.
"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
The American Civil Liberties Union was founded in 1920 and is our nation's guardian of liberty. The ACLU works in the courts, legislatures and communities to defend and preserve the individual rights and liberties guaranteed to all people in this country by the Constitution and laws of the United States.
(212) 549-2666LATEST NEWS
Right-Wingers Plot to Give Trump Control Over Federal Reserve If Reelected
"Under such an approach, the chair would regularly seek Trump's views on interest-rate policy and then negotiate with the committee to steer policy on the president's behalf," The Wall Street Journal reported.
Apr 26, 2024
Right-wing allies of former U.S. President Donald Trump are reportedly crafting a plan to give the executive branch control over Federal Reserve policy decisions, an effort that comes as the presumptive GOP nominee continues to signal his authoritarian intentions for a potential second term.
The Wall Street Journalreported Thursday that former Trump administration officials and other supporters of the ex-president "have in recent months discussed a range of proposals, from incremental policy changes to a long-shot assertion that the president himself should play a role in setting interest rates."
"A small group of the president's allies—whose work is so secretive that even some prominent former Trump economic aides weren't aware of it—has produced a roughly 10-page document outlining a policy vision for the central bank," the Journal reported. "The group of Trump allies argues that he should be consulted on interest-rate decisions, and the draft document recommends subjecting Fed regulations to White House review and more forcefully using the Treasury Department as a check on the central bank. The group also contends that Trump, if he returns to the White House, would have the authority to oust Jerome Powell as Fed chair before his four-year term ends in 2026."
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The Fed, still under Powell's leadership, has since jacked up interest rates to their highest level in decades in an attempt to combat inflation—an approach that progressive lawmakers and economists have criticized as misguided, arguing that prices were elevated primarily by pandemic-related supply chain disruptions and corporate profiteering and that hiking rates would harm workers. (Progressives have historically pushed for Fed reforms that would make the powerful central bank more accountable to the public.)
Late last year, Trump said interest rates were "too high" but did not say he would pressure the central bank to lower them, saying: "Depends where inflation is. But I would get inflation down."
More recently, Trump suggested the Fed's indication that rate cuts are coming in the near future as inflation cools is a political ploy to "help the Democrats."
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The Journal reported Thursday that "several people who have spoken with Trump about the Fed said he appears to want someone in charge of the institution who will, in effect, treat the president as an ex officio member of the central bank's rate-setting committee."
"Under such an approach, the chair would regularly seek Trump's views on interest-rate policy and then negotiate with the committee to steer policy on the president's behalf," the newspaper continued. "Some of the former president's advisers have discussed requiring that candidates for Fed chair privately agree to consult informally with Trump on the central bank's decisions... Others have made the case that Trump himself could sit on the Fed's board of governors on an acting basis, an option that several people close to the former president described as far-fetched."
According to earlier Journal reporting, Trump's team has discussed several possible replacements for Powell, including former White House economic adviser Kevin Hassett and Arthur Laffer, a former Reagan adviser and notorious tax-cut enthusiast.
Trump allies' plot to help the former president exert control over Fed policy if he's reelected in November provides further insight into the presumptive Republican nominee's likely approach to a second term.
During his 2024 campaign, Trump—who is facing 88 charges across four criminal cases—has vowed to be a dictator on "day one," wield federal authority to go after his political opponents, launch the "largest domestic deportation operation in American history," and use the U.S. military to crack down on protests.
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"It'd be a travesty for justices to delay matters further," said one legal expert.
Apr 25, 2024
After about three hours of oral arguments Thursday on former President Donald Trump's immunity claims, legal experts and democracy defenders urged the U.S. Supreme Court to rule swiftly, with just over six months until the November election.
Trump—the presumptive Republican candidate to challenge Democratic President Joe Biden, despite his 88 felony charges in four ongoing criminal cases—is arguing that presidential immunity should protect him from federal charges for trying to overturn his 2020 loss to Biden, which culminated in the January 6, 2021 insurrection at the U.S. Capitol.
Justices across the ideological spectrum didn't seem inclined to support Trump's broad immunity claims—which critics have said "reflect a misreading of constitutional text and history as well as this court's precedent." However, Citizens for Responsibility and Ethics in Washington (CREW) shared examples of what it would mean if they did.
"Trump could sell pardons, ambassadorships, and other official benefits to his wealthy donors, members of his clubs, or cronies who helped him commit other crimes," CREW warned. "Trump could sell nuclear codes and government secrets to help pay back crippling debts."
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After warning that a president could also order the occupation or closure of the Capitol or high court to prevent actions against him, CREW concluded that "the Supreme Court never should have taken this appeal up in the first place. They should rule quickly and shut these ludicrous claims down for good."
The organization was far from alone in demanding a quick decision from the nation's highest court.
"In the name of accountability, the court must not delay its decision," the Brennan Center for Justice said Thursday evening. "The Supreme Court's time is up. It needs to let the prosecution move forward. The court decided Bush v. Gore in three days—it should act with similar alacrity in deciding Trump v. U.S."
In Bush v. Gore, the case that decided the 2000 election, the high court issued a related stay on December 9, heard oral arguments on December 11, and issued a final decision on December 12.
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Due to Trump attorney's concessions in Supreme Court oral argument, there's now a very clear path for DOJ's case to go forward.\n\nIt'd be a travesty for Justices to delay matters further.\n\nJustice Amy Coney Barrett got Trump attorney to concede core allegations are private acts.\u2b07\ufe0f— (@)
According to NBC:
Matthew Seligman, a lawyer and a fellow at the Constitutional Law Center at Stanford Law School who filed a brief backing prosecutors, said Sauer's concessions highlight that Trump is "not immune for the vast majority of the conduct alleged in the indictment."
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Jonathan Westin, executive director of Climate Defenders, asserted that "Citigroup's racist funding of oil, coal, and gas is creating climate chaos that's devastating communities of color across the country."
"We're taking action to tell Citi that we won't put up with their environmental racism for one more day," Westin continued. "Our communities have reached the boiling point. Our children have asthma, our city's sky was orange, and our air polluted because of the climate crisis caused by Citi and Wall Street."
"We're going to keep organizing and taking direct action until Citi listens to us," he vowed.
Stop the Money Pipeline co-director Alec Connon said: "To have any chance of reigning in the climate crisis, we must stop investing in fossil fuel expansion. Yet, Citibank is pumping billions of dollars into new coal, oil, and gas projects."
"We're here to make it clear: If they're going to fund the companies disrupting our climate and our lives, we're going to disrupt their business," Connon added.
Activists have repeatedly targeted Citigroup in recent years as the megabank has pumped more than $300 billion into fossil fuel investments around the world since the Paris climate agreement.
According to the protest organizers:
Citi has provided $668 million in funding to Formosa Plastics between 2001-2021, which is trying to build a $9.4 billion plastics facility in a majority Black community in the heart of Cancer Alley in Louisiana.
Citigroup is also one of the biggest funders of state-run oil and gas companies in the Amazon basin, pumping in over $40 billion between 2016-2020, and a major backer of Petroperú, which has been involved in oil spills and Indigenous rights violations.
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