The federal appeals court of the Second Circuit significantly narrowed gag order secrecy provisions of the Patriot Act pertaining to National Security Letters (NSLs). This was a huge victory for the ACLU and its client, an internet provider, who have been fighting this since 2004.

As ACLU attorney Melissa Goodman said:

We are gratified that the appeals court found that the FBI cannot silence people with complete disregard for the First Amendment simply by saying the words ‘national security. This is a major victory for the rule of law. The court recognized the need for judicial oversight of the government’s dangerous gag power and rejected the Bush administration’s position that the courts should just rubber-stamp these gag orders. By upholding the critical check of judicial review, the FBI can no longer use this incredible power to hide abuse of its intrusive Patriot Act surveillance powers and silence critics.”

The decision was unanimous.  And the 2nd Circuit’s ruling was blunt:

The appeals court said the courts must be given a role in protecting rights even when the government says disclosure of information may endanger national security or interfere with diplomatic relations. 

"To accept deference to that extraordinary degree would be to reduce strict scrutiny to no scrutiny, save only in the rarest of situations where bad faith could be shown," the appeals panel wrote.

"The fiat of a governmental official, though senior in rank and doubtless honorable in the execution of official duties, cannot displace the judicial obligation to enforce constitutional requirements," it added.

Sounds very much like the same disgust we heard from the EFF suit judges, about going down the rabbit hole with Alice, doesn’t it? 

As someone who has helped officers obtain warrants in investigative matters, I can say without question the potential for abuse of that significant power is enormous without safeguards built into the system as stop-gaps for overly zealous or even personally vindictive actors. Third party review is essential, because even well-meaning, decent people make mistakes.

That the Patriot Act allowed that to be circumvented was a horrible error. That Dick Cheney keeps promoting it ought to be a red flag all by itself.

One only need look at the hoohaw over the Palin family "troopergate" vendetta, abusing government apparatus for family payback, to know that bad actors certainly exist at all levels — and need disinterested, third-party restraint and accountability for their actions.

What does this ruling mean?

The decision can be appealed to SCOTUS.  But any filing would come most likely after Obama takes office, and thus would be directed by whomever runs the OLC on the government end.

We discussed this case with Lou Dubose during his book salon.  He and Molly Ivins hit this issue hard because it goes to the heart of First Amendment protections in this country.  Because the government withdrew the NSL prior to the case reaching the appeals court — thus mooting the constitutionality issue on NSLs as a whole – the court could only rule on the gag order provisions left in place.

How far can unrestricted government intrusion go before we no longer stand for the rule of law?  I think we crossed that line a ways back…and it’s good to see another court call it out.

Ars Technica has some great detailed background, EFF and Wired have more.

(YouTube — Herbie Hancock and Corrinne Bailey Rae — River. Nothing to do with the post, just love this version.)