Doe v. Gonzales and the New FISA
I'm back, and I've been trying to get myself up to speed on everything that happened while I was gone. There's a lot of stuff I want to write about, but I'm pretty jet-lagged, so I think I'll limit myself to one topic tonight.
On Thursday, a federal district court judge in Manhattan--Judge Victor Marrero--issued an opinion striking down the provisions of the Patriot Act that authorize the collection of information via National Security Letters. The case in which the opinion was issued--Doe v. Gonzales--was filed by the ACLU and challenged the constitutionality of a number of provisions of the Patriot Act.
Judge Marrero ruled that the provisions governing the use of National Security Letters constitute an unconstitutional prior restraint on free speech (and violate the constitution's separation of powers) because they prohibit the recipients of such letters from disclosing that they have received them (at least without overcoming a series of nearly insurmountable legal burdens). This is actually the second time Judge Marrero has issued such a ruling. The original version of the Patriot Act did not provide any mechanism whatsoever for judicially-authorized disclosure; it was simply forbidden to disclose the receipt of a National Security Letter--forever. In response to Marrero's first opinion, the statute was amended to provide for a very limited sort of judicial review. In his latest opinion, however, Judge Marrero held that the provisions were still inadequate from a First Amendment perspective (his full 106 page opinion is here).
This is not an area of constitutional law with which I am all that familiar, so I don't feel comfortable evaluating the merits of Marrero's opinion (for a good overview of the relevant First Amendment issues, I recommend this post by Jack Balkin). That said, Marrero is a smart judge, and he and his clerks have clearly devoted a lot of time and effort to this opinion. And his first opinion resulted in an amendment to the law. So, at the very least, Marrero's opinion has to be taken seriously.
What I haven't seen anyone mention so far, though, is that Marrero's legal analysis would seem to apply with equal force to the new FISA bill passed by Congress last month. In particular, section 105B of the new bill authorizes the executive branch to acquire information--without a warrant--from any "communications service provider, custodian, or other person" so long as it "concerns" someone believed to be outside of the country. As commenter JaO put it, "105B all by itself is national security letters on steroids."
That's important because FISA also has a non-disclosure provision. Title 18, Section 2511(2)(a)(ii) states:
In his opinion, Marrero distinguishes the non-disclosure requirements of FISA from those relating to National Security Letters by emphasizing the role that judges play both in authorizing FISA surveillance on the front-end and reviewing it on the back-end (the relevant section of the opinion begins on page 20). And although FISA (even before last month) did allow some surveillance based solely on the Attorney General's certification, Marrero notes that that provision (section 1802) is narrow and only applies when surveillance is limited to foreign governments and their agents.
But as Marrero seems to acknowledge obliquely in footnote 15 of his opinion, the new amendments to FISA completely shatter this distinction. Under the amended FISA, the government can conduct all sorts of surveillance and information acquisition based solely on the certification of the Attorney General, without any meaningful judicial review on the front or back end. And unlike section 1802, section 105B is not limited to foreign powers and their agents.
In other words, if Marrero is correct that the provisions relating to National Security Letters in the Patriot Act violate the First Amendment, then the new FISA bill almost surely suffers from the same constitutional infirmity. If section 2709 of the Patriot Act is unconstitutional, then so is section 105B of the new FISA bill.
If I'm right about that, then Judge Marrero's opinion is highly relevant to the upcoming legislative fight about how to revise/fix the FISA bill that Congress passed last term.
On Thursday, a federal district court judge in Manhattan--Judge Victor Marrero--issued an opinion striking down the provisions of the Patriot Act that authorize the collection of information via National Security Letters. The case in which the opinion was issued--Doe v. Gonzales--was filed by the ACLU and challenged the constitutionality of a number of provisions of the Patriot Act.
Judge Marrero ruled that the provisions governing the use of National Security Letters constitute an unconstitutional prior restraint on free speech (and violate the constitution's separation of powers) because they prohibit the recipients of such letters from disclosing that they have received them (at least without overcoming a series of nearly insurmountable legal burdens). This is actually the second time Judge Marrero has issued such a ruling. The original version of the Patriot Act did not provide any mechanism whatsoever for judicially-authorized disclosure; it was simply forbidden to disclose the receipt of a National Security Letter--forever. In response to Marrero's first opinion, the statute was amended to provide for a very limited sort of judicial review. In his latest opinion, however, Judge Marrero held that the provisions were still inadequate from a First Amendment perspective (his full 106 page opinion is here).
This is not an area of constitutional law with which I am all that familiar, so I don't feel comfortable evaluating the merits of Marrero's opinion (for a good overview of the relevant First Amendment issues, I recommend this post by Jack Balkin). That said, Marrero is a smart judge, and he and his clerks have clearly devoted a lot of time and effort to this opinion. And his first opinion resulted in an amendment to the law. So, at the very least, Marrero's opinion has to be taken seriously.
What I haven't seen anyone mention so far, though, is that Marrero's legal analysis would seem to apply with equal force to the new FISA bill passed by Congress last month. In particular, section 105B of the new bill authorizes the executive branch to acquire information--without a warrant--from any "communications service provider, custodian, or other person" so long as it "concerns" someone believed to be outside of the country. As commenter JaO put it, "105B all by itself is national security letters on steroids."
That's important because FISA also has a non-disclosure provision. Title 18, Section 2511(2)(a)(ii) states:
No provider of wire or electronic communication service, officer, employee, or agent thereof, or landlord, custodian, or other specified person shall disclose the existence of any interception or surveillance or the device used to accomplish the interception or surveillance with respect to which the person has been furnished a court order or certification under this chapter, except as may otherwise be required by legal process and then only after prior notification to the Attorney General or to the principal prosecuting attorney of a State or any political subdivision of a State, as may be appropriate. Any such disclosure, shall render such person liable for the civil damages provided for in section 2520.In other words, under FISA, if you say anything about anything, you are potentially subject to civil damages.
In his opinion, Marrero distinguishes the non-disclosure requirements of FISA from those relating to National Security Letters by emphasizing the role that judges play both in authorizing FISA surveillance on the front-end and reviewing it on the back-end (the relevant section of the opinion begins on page 20). And although FISA (even before last month) did allow some surveillance based solely on the Attorney General's certification, Marrero notes that that provision (section 1802) is narrow and only applies when surveillance is limited to foreign governments and their agents.
But as Marrero seems to acknowledge obliquely in footnote 15 of his opinion, the new amendments to FISA completely shatter this distinction. Under the amended FISA, the government can conduct all sorts of surveillance and information acquisition based solely on the certification of the Attorney General, without any meaningful judicial review on the front or back end. And unlike section 1802, section 105B is not limited to foreign powers and their agents.
In other words, if Marrero is correct that the provisions relating to National Security Letters in the Patriot Act violate the First Amendment, then the new FISA bill almost surely suffers from the same constitutional infirmity. If section 2709 of the Patriot Act is unconstitutional, then so is section 105B of the new FISA bill.
If I'm right about that, then Judge Marrero's opinion is highly relevant to the upcoming legislative fight about how to revise/fix the FISA bill that Congress passed last term.
posted by A.L. at 11:23 PM
7 Comments:
Nice to see you back A.L. A solid achievement for the ACLU. Is it any wonder that Addington seems to hate the judiciary so much--these meddling, activist judges continually checking the executive's desire to snoop without interference or restraint. I wonder--how many thousands of NSLs have gone out? Is that number known?
Like you, I am not an expert in this area. I have not been following this case, and my knowledge of it is limited to a brief skimming of the opinion. With those caveats, I have some serious reservations about the opinion.
First, how exactly is this a prior restraint? As I understand it, it would be a prior restraint if the government sought to enjoin a recipient of an NSL from disclosing it. The court seems to think that it is a prior restraint because the law criminalizes speech before it has happened. Wouldn’t that standard make all alleged First Amendment violations into prior restraints (unless the law, in addition to violating the First Amendment, also violated the prohibition against ex post facto laws)?
Second, is there a case or controversy here? As far as I can gather, there was one plaintiff who had received an NSL, but that person’s non-disclosure order is now moot. Shouldn’t a justiciable challenge to this statute require that a recipient of an NSL claim that it would like to disclose the existence or contents of the NSL, but cannot do because of fear of prosecution? Even for a facial challenge to the statute, I would think that you need to be within the class of persons affected, which the ACLU is not, unless it has received an NSL.
This concern relates to a general impression that I got from the opinion, which is that rather than an attempt to resolve a particular case, it was more in the nature of a broadside against the various legal innovations that have been adopted by the Administration or the Congress in pursuit of the war on terror. This is perfectly appropriate for a law review article, but it is not a proper function of a judicial opinion. The judge, despite his lecture on the separation of powers, seems not to understand that the doctrine of judicial review is based on the argument that it is necessary for courts to declare what the law is in the context of deciding particular cases, and does not provide a freestanding warrant for courts to sit in judgment of the constitutionality of actions by the other branches.
I wouldn’t presume to attempt an authoritative analysis of whether the NSL non-disclosure provisions would or should survive a facial First Amendment challenge. I was struck, however, by the court’s somewhat breezy dismissal of the analogy to grand jury secrecy. It is illegal for a grand juror (among others) to reveal information about matters occurring before a grand jury, and as far as I know, there is no mechanism for a grand juror to get relief from this prohibition. So if I were a grand juror and thought there was an important public interest in publishing a book or article about what happened before the grand jury, I could not do so (even if the grand jury investigation terminated long ago). The court seemed to believe that this secrecy is justified by how broad the grand jury’s powers of investigation are (it can investigate just to assure itself that a crime hasn’t occurred!), yet I suspect that a similar rationale for NSL secrecy would have backfired badly on the government.
One cannot help suspect that the distinction is that the court is comfortable with and sympathetic to grand jury secrecy and its purposes (after all, there is no serious interest in public scrutiny of judicial proceedings, is there), and quite a bit less so with regard to NSL secrecy and its purposes.
MLS,
All very good points, particularly regarding the nature of grand jury secrecy.
It would be nice if someone who is an expert on this area of the law would weigh in on the merits of Marrero's opinion. Have you seen anything out there?
yeah right - and chimpy didn't actually win the election in 2000 - Gore had more votes in FL and across the nation.
He was anointed by the SCOTUS.
So tell me again what a great legal victory this is going to be...
1. Capable of repetition, yet evading review?
2. I wonder who will have standing to challenge the FISA amendments.
Interesting, A.L. I wondered the same thing about the gag requirements of the two statutes, but did not carry that analysis as far as you did.
More generally I also have been wondering about a collateral relationship between FISA's new section 105B and the national security letters authorized by the PATRIOT Act:
It seems to me that 105B can be used in lieu of NSLs. The new FISA provision allows the NSA to use a single "directive," which does not even identify the ultimate targets, to vacuum in everything that multiple, targeted NSLs might otherwise provide, and more. The principal requirement is that the information sought is deemed to "concern" someone believed to be outside the country -- not terrorists, but anyone at all. If that foreign nexus is present, it would appear to make NSLs unnecessary.
So the NSA could give a single directive to, say, Yahoo or the University of Michigan or your employer, requiring the email host to provide a copy of all its stored email traffic. The NSA then would be at pains to follow its own procedure to filter only anything that "concerns" a foreigner. Once the NSA can get all that with a single directive, there is much less need for NSLs.
JaO,
Good point. And consider this line from the New York Times story about National Security Letters the other day:
Earlier this year, the bureau banned the use of the exigent letters because they had never been authorized by law.
It's possible that 105A was intended to address FISA-related problems and 105B was intended, at least in part, to address legal obstacles related to the use of NSLs.
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