Obama Administration Defends Secrecy of National Security Letters
Posted on October 22, 2009
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By Kenneth J. Theisen
On October 20, 2009, the United States District Court for the Southern District of New York ruled that the Obama administration can continue to enforce a five-year-old gag order on an Internet service provider (ISP) that the FBI served with a national security letter (NSL) years ago.
The ruling came in a lawsuit brought by the American Civil Liberties Union (ACLU) and the New York Civil Liberties Union on behalf of the ISP. Under a PATRIOT Act provision, the FBI can use NSLs to demand personal records about innocent customers from ISPs, financial institutions and credit companies without prior judicial approval, and then bar NSL recipients from disclosing anything about the record demand.
NSLs have been extensively used by the government to go on fishing expeditions and to spy on us. Even government auditors have concluded that the FBI has failed to follow the rules in their utilization of NSLs, but despite this the letters are still used and congress appears set to pass an extension of the PATRIOT Act which will allow continued abuses of NSLs. Gag orders are regularly used along with NSLs to cover-up the governments’ dirty work.
Melissa Goodman, staff attorney with the ACLU National Security Project, said this about the court ruling by Judge Victor Marrero, “We’re deeply disappointed that the court ruled that the FBI can continue to gag our John Doe client, who has been silenced for more than five years. This gag – which we continue to believe is unnecessary and unconstitutional – has prohibited Doe from participating in the public debate about the Patriot Act and has been used to suppress key information about the FBI’s misuse of NSLs. The FBI’s overuse of the NSL gag power has allowed the FBI to manipulate the surveillance debate and to deprive Congress and the public of crucial information that would inform the ongoing congressional debate about this intrusive surveillance power."
In addition to the court ruling that the FBI could continue to enforce its long-running gag on John Doe, the court also ruled that the FBI can continue to suppress an "attachment" to the NSL Doe received. The ACLU argued that the attachment, if disclosed, would show that the FBI tried to obtain records that it was not entitled to obtain under the NSL statute.
Because the FBI imposed a gag order on the ISP, the lawsuit, now called Doe v. Holder, was initially 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 five years old and even though the FBI abandoned its demand for records from the ISP over two years ago. But since coming into office this year, the Obama administration has been consistent in its efforts to cover-up the crimes begun under the Bush regime. The Department of Justice (DOJ) under Obama has repeatedly gone to court to protect the government’s spying on Americans and others, as well as covering up torture, murders, kidnapping (also known as rendition), etc.
In December 2008, the U.S. Court of Appeals for the Second Circuit ruled that parts of the NSL statute’s gag provisions were unconstitutional, specifically the sections that wrongly placed the burden on NSL recipients to challenge gag orders, narrowly limited judicial review of gag orders and required courts to defer entirely to the executive branch. The court of appeals sent the case back to the U.S. District Court for the Southern District of New York and ordered the government to justify the constitutionality of the gag on Doe. In June 2009, the government submitted its justification for the gag on Doe entirely in secret, in a classified declaration that even Doe’s ACLU attorneys couldn’t see.
While the district court ordered the government to produce an unclassified summary, most of the evidence used to justify the continued gag on the ISP remains a secret. But keeping evidence secret is just one more part of the effort to keep the public ignorant of our government’s crimes.
"Continuing to impose a blanket gag order on our Doe client places a serious burden on his First Amendment rights. It is important that NSL recipients – those with first-hand knowledge of the FBI’s actual use and abuse of its NSL power – be allowed to speak out," stated Larry Schwartztol, staff attorney with the ACLU National Security Project.
But allowing victims of the government’s crimes to speak out is exactly what the government fears and that is why the Obama administration has gone to court to keep prisoners held in the U.S. war of terror at Bagram, Afghanistan from being allowed to challenge their incarceration in federal courts. That is why to government has continued to defend military tribunals. That is why the House of Representatives passed a law recently to keep torture photos from being publicized. That is why the Obama DOJ has defended “state secrets,” “national security,” and other “privileges” in court after court – to keep the victims silent. “Open and transparent government” is a good sound bite when running for president, but in office Obama has followed the practice of the Bush regime.