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ACLU: Patriot Act, Free Speech Clash
Congress does not have the power to demand silence from people forced to turn over electronic communications such as Internet records used to investigate terrorism, an American Civil Liberties Union lawyer argued Wednesday.
During oral arguments in U.S. District Court in Manhattan, ACLU lawyer Jameel Jaffer told Judge Victor Marrero he must strike down a part of the USA Patriot Act that lets the FBI request records without the kind of court order required of other government searches.
"It doesn't allow for meaningful judicial review," Jaffer said of the so-called national security letters, or NSLs, investigative tools used by the FBI to compel businesses to turn over customer information without a judge's order or grand jury subpoena.
The law also disregards First Amendment rights by permitting law enforcement to ban those who receive the letters from talking about them publicly, he said.
"We do think it's a classic prior restraint because it conditions speech on the permission of executive officers," he said.
Assistant U.S. Attorney Jeffrey S. Oestericher said it is within the government's power to ban people from talking about the letters.
"We're talking about information someone learns as part of a confidential government investigation," he said.
The judge did not immediately rule Wednesday.
In 2004, Marrero ruled that the letters violate the Constitution because they amount to unreasonable search and seizure. He found that the nondisclosure requirement violated free speech.
The case pertained to an unidentified Internet access firm that received one of the letters, in which the FBI certified that phone or Internet records are "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities."
The 2nd U.S. Circuit Court of Appeals in Manhattan later returned the case to the judge to reconsider the issues after Congress changed the law in 2005 to specify that an NSL can be reviewed by a court, and to allow recipients of the letters to tell their lawyers about them.
The ACLU said, however, that the changes didn't go far enough because the government still can give people letters before a court review, and recipients still can be barred from talking about the letters publicly.
After Congress revised the law, Circuit Judge Richard Cardamone wrote that concerns about national security in terrorism investigations should be balanced with "common sense so as not forever to trump the rights of the citizenry under the Constitution."
He was critical of what he called the government's recent insistence that a permanent ban on speech is sometimes permissible under the First Amendment. He said he suspected "a perpetual gag on citizen speech of the type advocated so strenuously by the government may likely be unconstitutional."
© 2007 The Associated Press
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18 Comments so far
Show AllMy loyalty is to the Bill of Rights.
If I was givin a letter by the Feds, I would tell the world and if that makes me a criminal or terrorist, so be it!
Love, Jim
There's a recursive problem here. So if the ACLU loses this one, what will the Unitary request next? That we cannot talk about talking about having to turn over documents? A gag order on the idea of gag orders itself?
I agree with Jim Glover. NSL letters are absolutely meaningless. And I would try to let the world know the contents of any and all letters sent to me by the FBI, unless I myself made the decision that knowledge of the letters might harm our country or I decided the letters were of no interest. I took an oath to preserve, protect, and defend the Constitution. I go quietly about my own life as most people do, except I do e-mail my eporesentative and senators every once in a while to ask them to impeach Bush and Cheney and to uphold the Constitution in other ways.
"He was critical of what he called the government's recent insistence that a permanent ban on speech is sometimes permissible under the First Amendment."
A "PERMANENT" BAN ON SPEECH is sometimes permissible under the First Amendment???? Did I read that correctly?
Under what circumstances would "SOMETIMES" permissible happen to be and who makes that decision?
The PATRIOT Act must be repealed.
This will only happen, however, if either Kucinich or Ron Paul are elected President.
You can't even acknowledge that you're under investigation because that knowledge is part of a "confidential government investigation"? Anyone you know 'disappear' recently?
I could never imagine it would go this far.
When you combine the SNLs with the following three items, you do begin to wonder!
When does the roundup start? Maybe it already has - under the above the populace would never know.
Please read and consider how the ramifications of each article intersect in an altogether too possible scenario.
1.Homeland Security Contracts for Vast New Detention Camp
http://news.pacificnews.org/news/view_article.html?
article_id=eed74d9d44c30493706fe03f4c9b3a77
2. Muslim Groups Oppose a List of 'Co-Conspirators'
http://www.nytimes.com/2007/08/16/us/16charity.html?_r=1&ref=us&oref=slogin
3. New York City Police Report Explores Homegrown Terrorism
http://www.nytimes.com/2007/08/16/nyregion/16terror.html?ref=nyregion
The National Anathema
Our county is not free
There is no liberty
But still we sing
Land where we're full of pride
Because our parents died
On this and not the other side
Let freedom sting.
Our country is depraved
Its workers are enslaved
But now we sing.
Land where all hope has died
When justice is denied
Except for those inside
Let freedom sting
Our county once was free
With opportunity
But now we sing
Land where we few divide
The wealth that you provide
We Daughters are satisfied
To let freedom sting
Well, nothing makes sense anymore. Take the signing statements for instance. Once a president signs a bill into, a bill that, obviously was passed by both houses of Congress, it becomes law. From that point on it doesn't matter one goddamned bit what ANYONE scribbles on that piece of paper. The scribbles were not part of the bill that Congress passed, which became law upon the president's signature. Having taken an oath of office to uphold the law, a president who fails to abide by all provisions of the law he just made official is a law breaker and should be held to account for it just like anybody else who may violate it. "Signing statements" are thus horseshit and Congress knows this full well but refuses to take the necessary action to hold the president responsible.
I have not seen the real auguments as to why telling about search would be a threat to national security. That broad statement is weakly supported by reason. If you tell people, they'll stop doing something wrong. Not too bad an out come. They'll get mad because they're not doing anything wrong. Or they'll change their tactics to avoid detection; but, they're aready a suspect and being watched. It mostly seemes to be a way to avoid accountability so the doors would be open for abuse. How many of you would still obey the speed limit if you knew for sure the police weren't looking? Like we should be happy to rely on the abusers to let us know when they are abusing the law. It all comes down to trust. The right is telling us to trust the government, and up is down and sideways is backwards. Trust is built through transparecy not secrecy.
Maybe we need some new Patriots....and maybe they should all take off this 9/11 and talk about it while we still can? Support and defend the US Constitution Arise and stay home September 11th
What perctage of We The People do you suppose it will take for our representatives to understand the fact that We are serious? Believe and we can acheive....Stand for our Land......The Action of Inaction, no more oxymoronic than our government seem today is it? Will you be there or just wonder how we lost it all?
Read William Shirer's "Berlin Diary". Not much differnce between Hitler and Bush and even Congress now, taking away our rights. Watch out, it won't be long and you won't be able to even speak out without beibg hauled off to prison without trial or notification of your family. Gestapo? Right around the corner and it will be too late to stop it just as it was for the people of Germany. Speak out now while you can.
Richard: Right on!!!Let's get some attention. On 9/11, no work, no buying, no going to the gas pump. Talk to your neighbors. Take the day off to plant your winter garden. Looks like you might need the veggies!
Jess: You have also nailed it. My dad just turned 85. He is no longer the sharpest knife in the drawer, but he told me the other day that what is going on now is EXACTLY what happened in Nazi Germany in the run up to WWII. Scary stuff.
Repeal the Patriot Act. Stop the torture. Reinstate habeous corpus. AND, impeach now!!!
Question. How would electing Kucinich or Paul repeal the Patriot Act? The problem today is not that Bush is vetoing the repeal. The problem is that in the Congress the Democrats and Republicans jointly passed this act. The Democrats and Republicans jointly made permanent the provisions that were originally passed with the lie (foisted on us mainly by the Democrats as part of their excuses for passing the act in the first place) that the worst provisions would "sunset". The Democrats and Republicans have jointly refused to even meaningfully consider repealing or rolling back the act. And the Democrats and Republicans just jointly passed a bill expanding Bush's powers to spy on Americans.
How would electing Kucinich or Paul President change this? The problem is the Democrats and the Republicans in Congress. You'd better be thinking how to elect a coalition of Greens and Libertarians who can form a majority and repeal the act. That would put something on Kucinich's or Paul's desk for them to sign.
I have to agree with COMarc.Congress is full of the spineless and/or the conspirators who want to revoke what freedoms we have left.I highly suggest that We,who still have the right to bear arms,begin exercizing that right.I,for one,will not go quietly.The time for protest and pleading has passed.This is why the 2nd amendment was written into the Bill of Rights.To protect ourselves from our own government.That time is now upon us.Good luck,everyone
Here's how bad it's become. I got this email this morning asking me to support a pledge for all the Presidential candidates to take swearing that they will support the Constitution! Hello? Part of their OATH, if elected, would be to swear to defend the Constitution! Here's what I received:
The American Freedom Campaign (www.americanfreedomcampaign.org) is asking all of the major presidential candidates to sign the American Freedom Pledge. This pledge, which concludes with the line, "I pledge to fight to protect and defend the Constitution from assault by any President," was sent by mail and fax to the campaigns on August 15.
The Campaign has been motivated to act by the behavior of the Bush Administration over the past six years. From spying on its own citizens without court orders to sanctioning torture to ignoring congressional subpoenas to denying habeas corpus to detainees, this Administration has treated the Constitution as more of an advisory document than as one of the greatest and most important documents in history. As we head into the 2008 presidential election, the American people need to know that the next president will honor, protect, and defend the Constitution. Any individual who cannot pledge to do so does not deserve to lead this country.
With these thoughts in mind, we sincerely hope that you will sign the American Freedom Pledge -- a pledge designed for American citizens but which is especially appropriate for presidential candidates. The full text of this pledge is as follows:
"We are Americans, and in our America we do not torture, we do not imprison people without charge or legal remedy, we do not tap people's phones and emails without a court order, and above all we do not give any President unchecked power.
"I pledge to fight to protect and defend the Constitution from assault by any President."
Congress repealed portions of the old Patriot Act...it will happen again.
Desaparecidos. Bienvenidos!