Congress' attempt to fix the problems with a key aspect of the USA PATRIOT Act has failed to satisfy a Manhattan federal judge.
Southern District of New York Judge Victor Marrero Thursday ruled unconstitutional a provision authorizing the FBI to issue a form of administrative subpoena called a National Security Letter (NSL), finding that an amended gag order on recipients of the letters still violated the First Amendment.
The judge also found that provisions allowing for judicial review for those who refuse to comply with the letters or challenge the secrecy provision was inadequate and violated the separation of powers.
Finally, Marrero concluded that the offending portions of the statute, including the gag rule, could not be severed from the whole.
It was the second time that Marrero had rejected the gag order on Internet service providers and others who receive the letters from the FBI under 18 U.S.C. §2709.
And it was another blow to FBI officials who consider the letters "indispensable investigative tools" for counterterrorism and counterintelligence investigations.
Marrero's 103-page opinion in Doe v. Gonzales, 04 Civ. 2614, comes three years after he first found the statute unconstitutional on First and Fourth Amendment grounds in Doe v. Ashcroft, 334 F. Supp. 2d 471. He stayed his ruling until the case could be reviewed by the 2nd U.S. Circuit Court of Appeals, meaning that the FBI could continue to issue the letters.
The 2nd Circuit held off ruling on Marrero's opinion because Congress had amended the law. It remanded the case to Marrero, who held a hearing on Aug. 15.
National security letters allow FBI agents in counterterrorism and counterintelligence investigations to secretly gather phone, bank and Internet records without a court order or a grand jury subpoena.
Thursday, Marrero found that "several aspects of the revised nondisclosure provision of the NSL statute (18 U.S.C. §2709) violate the First Amendment and the principle of separation of powers."
Again, Marrero stayed enforcement of his ruling to enable the government to appeal to the 2nd Circuit and to make any motion before him or the circuit for whatever relief was needed to "maintain the confidentiality of any information implicated by the court's ruling."
Attorneys for the American Civil Liberties Union, who brought the case on behalf of a still-unnamed Internet service provider, were elated by the ruling.
At a press conference, ACLU Executive Director Anthony Romero said the problem with the law is that "it flips" traditional First Amendment requirements by putting "the burden on NSL recipients" to go to court and prove a violation."
"The takeaway from this is that the FBI cannot be invested with the authority to determine, by itself, without meaningful judicial oversight, which NSL recipients should be allowed to speak," he said.
A spokeswoman for U.S. Attorney Michael Garcia said, "We are reviewing the decision and considering our appellate options."
While the government's appeal of Marrero's 2004 opinion was pending, Congress changed the law to remove a blanket prohibition on disclosing receipt of the letter. The new §2709(c) called for a case-by-case determination by the FBI that disclosure "may result" in danger to national security; interfere with a criminal, counterintelligence or counterterrorism investigation; interfere with diplomatic relations; or present a danger to the life or safety of any person.
Under the provision, once the FBI makes a certification, it is treated as conclusive, absent a court finding of bad faith.
And unlike the original provision, §3511 specifically provides for judicial review of the request, including the potential to challenge the non-disclosure requirement.
At the hearing in August, Assistant U.S. Attorneys Jeffrey Oestericher and Benjamin Torrance said that the concerns expressed by Marrero in his 2004 ruling had been addressed by Congress.
Oestericher told the court that recipients of the letters were now in a position to challenge them "at the outset, over time, and repeatedly over time at one-year intervals." He also argued the law merely prevents people from disclosing what they learned in the course of a government investigation.
But Jameel Jaffer, an ACLU attorney, argued that the law remained a prior restraint on First Amendment speech and an unconstitutional move by Congress to impose judicial deference to the executive branch.
Jaffer called the new judicial review provisions "purely cosmetic" and said the law "invests executive officers with unbridled power to suppress speech."
He again charged indiscriminate use, and misuse, of the letters by the FBI, as documented by a report by the Justice Department's Office of the Inspector General.
The FBI issued 8,500 national security letter requests in 2000, but in the wake of the Sept. 11, 2001, terror attacks the number increased dramatically, peaking at 56,000 in 2004.
Thursday, Marrero said the national security letter, while a valuable surveillance tool, also "poses profound concerns to our society."
"Through the use of NSLs, the government can unmask the identity of Internet users engaged in anonymous speech in online discussions," he said. "It can obtain an itemized list of all of the emails sent and received by the target of the NSL, and it can then seek information on individuals communicating with that person. It may even be able to discover the websites an individual has visited and queries submitted to search engines."
Even taking into account the "unique latitude and added flexibility national security needs demand," he said, "the government must either affirmatively terminate the nondisclosure requirement or bear the burden of justifying to a court why continued secrecy is necessary within a reasonable time" of issuing the letter.
And "in many ways most troubling" he said, the standard of review applied to a challenge to a letter "offends the fundamental constitutional principles of checks and balances and separation of powers."
EXACTING LEVEL OF REVIEW
Key to the judge's First Amendment analysis was his finding that the provision is a prior restraint and content-based restriction, which subjects it to the exacting "strict scrutiny" level of review.
And under strict scrutiny, he said, the process is "constitutionally deficient under the First Amendment in several respects."
His solution was to allow the FBI to impose the gag order for a limited period of time prior to judicial review, an approach, he said, that "balances the strong First Amendment concerns at issue with the FBI's need to act quickly in conducting counterterrorism investigations."
Marrero also harkened back to the internment of Japanese Americans during World War II, and other examples, to outline the dangers that arise when the judiciary abdicates its role of reviewing acts of Congress and the wielding of executive power.
"Viewed from the standpoint of the many citizens who lost essential 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," he said.