Gag orders unconstitutional

Kudos to the ACLU, whose case Doe v. Mukasey resulted in the 2nd Circuit Court of Appeals' striking down Patriot Act provisions that impose gag orders on those who receive national security letters. A national security letter (NSL) is a document that allows the FBI to obtain information about you without first getting a warrant from a judge, which means without your 4th Amendment rights against unreasonable search and seizure being protected. Not surprisingly, after the Patriot Act made it easier to use national security letters, their use - and abuse - increased dramatically. One of the problems in challenging NSLs has been the gag order (image credit) that accompanies it - the recipient may not tell anyone they've received the NSL. In Doe v. Mukasey, the recipient of the NSL represented by the ACLU is an internet service provider who is still subject to a gag order after more than 4 years, even though the FBI was no longer seeking the information it had requested. As a result, the ACLU cannot reveal their clients' name and the provider cannot say it received the NSL
The court invalidated provisions that required NSL recipients to initiate judicial review of gag orders and limited that review. It held that the government must bear the burden of going to court to justify silencing NSL recipients, and that the limits placed on judicial review essentially required the courts to defer entirely to the executive branch. Such deference runs counter to "well-settled First Amendment standards and deprive[s] the judiciary of its important function as a protector of fundamental rights," according to Arthur Eisenberg, Legal Director for the New York Civil Liberties Union. As a result of the ruling, the government will have to justify the gag order on this NSL recipient.

On October 26

On this day in ...

... 2001, as congressional leaders looked on, Pub. L. 107-56 was signed into law by U.S. President George W. Bush. Formally titled "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism," this USA PATRIOT Act included the easing of surveillance and hundreds of pages of other measures adopted in near-immediate response to the September 11, 2001, terrorist attacks in New York and Washington.

... 1956, the Statute of the International Atomic Energy Agency was opened for signature "by all States Members of the United Nations or of any of the specialized agencies." That same month "81 nations unanimously approved" the founding instrument of the IAEA, set up a year later in the temporary headquarters at right. The Vienna-based agency now has 145 member states.

States of emergency & habeas corpus

I am grateful to Diane for so thoroughly completing my post. As she so rightly points out, neither the US executive nor the legislature has suggested suspending the Constitution or dismissing members of the Supreme Court or any other court, though the Patriot Act, at least in its first version, arguably does away with much of the 4th Amendment. Diane also rightly says that Lincoln’s suspension of the writ of habeas corpus was controversial even in the mid-1800s. Today, the right to habeas corpus is at least implicitly nonderogable under international law: while no international treaty says so expressly, the Paris Principles of 1984 on states of emergency (see Richard B. Lillich, "The Paris Minimum Standards of Human Rights Norms in a State of Emergency", Am J. Int’l L., Vol. 79 (1985), pp. 1072-1081) eschew the suspension of habeas during states of emergency. The American Court of Human Rights followed that recommendation, judging in 1987 that habeas may not be suspended during a state of emergency; and the UN Human Rights Committee observed in 2001 that this essential right should not be suspended during emergencies. In addition, it is arguably protected by Common article 3 of the Geneva Conventions, which, as the Supreme Court recognized in Hamdan, requires that enemy combatants be judged by “a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples”. The right to habeas corpus is one of them. (illustration courtesy of the American Civil Liberties Union's "Find Habeas" campaign, about which we've posted here)