Alablawg

Commentary on Alabama Law and Society

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Wednesday, May 24, 2006

The Eternal GWOT

Decision of the Day highlights an interesting case from the Second Circuit Court of Appeals. It was two cases consolidated on appeal. Both plaintiffs are internet service providers who received "national security letters" from the FBI. As the court explains,

An NSL is an administrative subpoena that allows the FBI to gain access to, inter alia, "subscriber information . . . or electronic communication transactional records" held by internet service providers, when this information is "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities . . . ." 18 U.S.C. ยงยง 2709(a) & (b)(2).

Initially, the FBI could send an NSA totally on its own; no court had to approve the letter. Also, if you got one you could not tell anyone about it, ever. Not even your lawyer.

Not surprisingly, the plaintiff's challenged the letter on several First and Fourth Amendment theories. Since then the law has changed, so the Second Circuit remanded the cases for re-consideration in light of the changes.

Now for the interesting part. The government still argues that it can permanently ban any speech about the letters. According to their view, if you get one of these letters, you can never tell anyone. Judge Cardamone explains the government's arguments in his dissent. Their rationale is the truly scary part:

The government advanced the "mosaic theory" as one of the reasons to support a permanent ban on speech. That theory envisions thousands of bits and pieces of apparently innocuous information, which when properly assembled create a picture. At bottom the government's assertion is simply that antiterrorism investigations are different from other investigations in that they are derivative of prior or concurrent investigations. Thus, permanent non-disclosure is necessary because, implicitly in the government's view, all terrorism investigations are permanent and unending.

Two things frighten me. First, the mosaic theory means they are operating without any individualized suspicion. They do not have in mind any particular person, place, or threat. They just need all the "apparently innocuous information." That means everyone in the country is a potential subject of the investigation.

Second, the government may not have explicitly reached it in this case, but here is the logical outcome of their assertions: We can "suspend" your rights while we fight terror. We will be fighting terror forever. Therefore, we can suspend your rights forever.

Too bad Alabama does not currently have anyone to fight for our rights as did our own Justice Hugo Black, who Judge Cardamone quotes:

As Justice Black wrote in New York Times Co. v. United States, 403 U.S. 713 (1971): "The word 'security' is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic."