Wednesday, May 27, 2009

Footnote to the Footnote, Okay I Have to Be Fair Div.

One bit of good news: The ACLU reported last week that the Obama administration has declined to seek Supreme Court review of a Second Circuit Appeals Court decision from 2008 that struck down part of the Traitor - excuse me, "Patriot" - Act as unconstitutional. The time limit for filing such a petition has expired without action from the White House.

The provisions in question related to the issuance of gag orders on recipients of National Security Letters, or NSLs, a means by which the FBI can with no judicial or executive oversight demand a wide range of information from individuals. The gag orders make it a crime to tell anyone anything about the contents of the letter or even that you were served with one.
The lawsuit at issue, now called Doe v. Holder, was filed by the ACLU and New York Civil Liberties Union in April 2004 on behalf of an Internet service provider (ISP) that the FBI served with 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.

Because the government has decided not to seek Supreme Court review, it will now for the first time have to defend the constitutionality of the gag order on the ACLU's client. The FBI continues to enforce the gag order even though the underlying investigation is more than five years old and may well have ended, and even though the FBI abandoned its demand for records from the ISP more than two years ago. ...

Moreover, beyond the resolution of the gag that was imposed in this case, the appeals court decision will require the government to develop new procedures under which it will bear the burden of justifying any gag that it seeks to impose.
The issue at hand, note, is the gag order, not the NSL itself. Frankly, how such things as NSLs - which predate the Traitor Act - can be possibly be held as Constitutional is beyond me, but again, the immediate issue here is the gag order. Maybe once that is shot down we can take up the broader issue.

Footnote Just To Be Paranoid: Having praised the Obama White House for declining to appeal, I have to wonder (yes, I have to) if the decision was made because they knew it was a loser - courts, including, perhaps especially, SCOTUS, tend to be very protective of their powers, around which NSLs make an end run - and better to lose in one circuit than in the whole country.

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