Sunday, September 09, 2007


'The secrecy provisions are "the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values.' --From Judge Marrero's 103 page ruling statement.

'I resent being conscripted as a secret informer for the government and being made to mislead those who are close to me, especially because I have doubts about the legitimacy of the underlying investigation.' --An anonymous recipient of an NSL in the Washington Post, March 22nd, 2007.

New York State--New York Southern District Court Judge Victor Marrero's decision is a clear-cut victory for First and Fourth amendment protections. This is because the FBI was allowed by Congress in a little-known provision of the act to issue indefinite 'gag-orders' on anyone that they presented an NSL ('national security letters') to for information. We know that these letters have been used frequently by the Justice Department in obtaining records from internet providers and telecommunications companies--these proprietors can now tell the public about their concerns regarding these NSLs, previously barred by an out-of-control Republican dominated 109th Congress. The present 110th Congress appears to be little better, and their current unpopularity with the public is reflected in their overall disregard for the will of the people.

The ruling follows reports this year by Justice Department and FBI auditors that the FBI potentially violated privacy laws or bureau rules more than a thousand times while issuing NSLs in recent years -- violations that did not come to light quickly, partly because of the Patriot Act's secrecy rules. "The risk of investing the FBI with unchecked discretion to restrict such speech is that government agents, based on their own self-certification, may limit speech that does not pose a significant threat to national security or other compelling government interest," Marrero said. (Washington Post, 09.06.2007)

2005 revisions by the 109th Congress were in-response to earlier rulings by Marrero (as well as a pending one), and this ruling is a way of saying the language of the newer provisions weren't enough to protect the civil rights of the public--it goes too far. But going too far is what Congress and the Bush administration wanted, a de jure rollback of our rights, rather than those of so-called 'terrorists.' The Washington Post bends-backwards to avoid this aspect in their piece, but they're hardly alone. As for the decision: barring a successful appeal, that's it--you cannot bar speech and allow such incredible discretion within the Justice Department. Is it enough of a legal firewall to protect our rights? Are the threats to public safety really so great? Surely, it's unwise for any modern society to take the word of their leaders as gold.

Marrero has allowed the government 90 days before enforcement so they can appeal the decision. Even if they do, it's unlikely they'll win on this count. But there are other counts that are unaffected, this battle was just over the telecommunications companies--the decision doesn't cover: banks, credit companies, and 'other probes.' That's not very reassuring, but the decision is a good direction.

Why? Because now, these telecommunications people can start talking about what the questionable probes entailed. An anonymous proprietor of a small internet provider wrote a piece in the Post entitled, 'My National Security Letter Gag Order,' which was published on March 22nd of 2007. It doesn't paint a very pretty picture of what being under the gag provision entails: the barring of speech, even if the NSL inquiry is struck-down. There is no ability to tell the public if there was wrong-doing by federal agents, investigators, and their superiors within the executive branch.

I found it particularly difficult to be silent about my concerns while Congress was debating the reauthorization of the Patriot Act in 2005 and early 2006. If I hadn't been under a gag order, I would have contacted members of Congress to discuss my experiences and to advocate changes in the law. [Ed.-emphasis added] The inspector general's report confirms that Congress lacked a complete picture of the problem during a critical time: Even though the NSL statute requires the director of the FBI to fully inform members of the House and Senate about all requests issued under the statute, the FBI significantly underrepresented the number of NSL requests in 2003, 2004 and 2005, according to the report. (Washington Post, 03.22.2007)

A little bait-and-switch between Congress and the Justice Department? In short, it's unlikely that the 109th Congress could have been unaware of these procedural problems in the law, and were very consciously skirting the ability of those presented with NSLs to petition (alert) the judiciary--namely--the courts to abuses in the investigations. It should be noted that many of these same legislators who authorized these provisions are still holding-office. One could imagine that Sen. Larry E. Craig, Mark Foley, Arlen Specter, Hillary Clinton, and Tom Delay all voted approvingly of these sections of the Patriot Act, and continued to attempt inserting the substance of the gag effect into every subsequent version after Marrero's 2004 rulings against them. We know that it wasn't someone like Sen. Russ Feingold, and that he's virtually alone in his opposition to such legislative zeal.

When the ruling hit, there was a general silence from the Senate--with one exception: Russ Feingold again, so it appears that gagging the recipients of NSLs is a bipartisan issue with bipartisan support. Will they relent? Don't bet-on-it. That's why federal district Judge Marrero wrote such a sprawling opinion--it's 103-pages-long. Why? To make it implicitly clear what the government can and cannot do along constitutional lines.

For any judge to write an opinion this long means that they're not kidding, and not playing games. The role of the judiciary in our system of checks and balances is to rule along constitutional lines, reining-in the other branches of government. This is what Judge Victor Marrero has done, to his credit, and a credit to his role in our unique system of government. It's a system that's worth saving, and worth protecting zealously.

“When the judiciary lowers its guard on the Constitution, it opens the door to far-reaching invasions of privacy,” Judge Marrero wrote, pointing to discredited Supreme Court decisions endorsing the internment of Japanese-Americans during World War II and racially segregated railroad cars in the 19th century. “The only thing left of the judiciary’s function for those Americans in that experience,” he wrote, “was a symbolic act: to sing a requiem and lower the flag on the Bill of Rights.” Lawyers for the American Civil Liberties Union, which represented the Internet company, said Judge Marrero had confirmed a bedrock principle. (New York Times, 09.07.2007)

The internet company is the same one as that of the 'anonymous' byline at the Washington Post from March of this year. With this ruling, they--and many others--can now inform a reluctant Congress in a manner that can no longer be ignored. But what's most important is that the public will be informed of further misdeeds within the executive branch--aided-and-abetted by her allies in Congress, the legislative branch. It appears that some in Congress are determined to continue this aiding and abetting of the executive branch.

Interestingly, Marrero is a Clinton appointment (1999), and a Puerto Rican-American. It's interesting to note how it has frequently been minorities and immigrants who have protected our traditional systems of due process greater than so-called 'natives.' While she's got her WASP credentials assured, federal district Judge Gladys Kessler is also a Clinton appointee. She's overseeing the trial of one Deborah Jeane Palfrey. Perhaps old Bill wasn't so bad after all, but only time will tell if his judiciary appointees will truly do him proud--they're doing pretty good so far. Fittingly, we can reflect that not all Hispanic-Americans are Alberto Gonzales, and understand the value and uniqueness of our legal system. Judge Marrero understands his role in the judiciary well. Others within the court system should look to his example.

'Cases filed in the New York Southern District Court by Victor Marrero':