Revised Nondisclosure Provisions of NSL Authority Still Violate the First Amendment, Judge Marrero Rules:
In 2004, Judge Marrerro struck down 18 U.S.C. 2709, the 1986 National Security Security letter provision of the Electronic Communications Privacy Act (modified by the Patriot Act), on Fourth Amendment and First Amendment grounds. My primary blog post about the 2004 case, the 122-page opinion in Doe v. Ashcroft, was here. In 2006, the Patriot Act reauthorization act amended 2709 in response to Judge Marrero's decision. Today, Judge Marrero struck down the new version of 2709 as well in a decision you can read here. Today's decision in Doe v. Gonzales is a mere 106 pages long, and it concludes that the nondisclosre provision violates the First Amendment and "the separation of powers."

  Based on a quick skim, Judge Marrero's argument seems to be that a non-disclosure order is a prior restraint and content-based speech restriction triggering strict scrutiny, and that the procedural safeguards put in place in 2006 are still not enough to satisfy the narrow tailoring requirement. Perhaps the most interesting part of Judge Marrero's opinion, and the one that will probably draw the most attention, is the Judge's rather dramatic lecture about the essential role of Judges in the American form of government. (See around pages 65-75) I can't figure out what work it really does — I think we all understand judicial review — but it's certainly consistent with the style of Judge Marrero's 2004 opinion. As for the First Amendment arguments, I'm not enough of a First Amendment pro to know whether they are persuasive. I'll save that for Eugene, should he be so inclined.
cboldt (mail):
The interposed 2nd Circuit opinion is a good read as well -- at least it adds additional judicial voices to the debate.

Doe and ACLU v. Gonzales
05-0570-cv(L) and 05-4896-cv(CON) (2nd Cir. 2005)
(text of
Judge Cardamone's concurring opinion
9.6.2007 6:01pm
Dilan Esper (mail) (www):
I think I understand why he puts in the rhetoric about judicial review, though I wouldn't have done it if I were him (just like if I were Anna Taylor, I wouldn't have put in the stuff about the US not having a king in the electronic surveillance opinion).

The NSL procedure seems like a way to allow the executive to cut the judiciary out of the procedure of authorizing searches and policing their legality. Executive branch sends private party a letter, which contains threats for noncompliance and tells private party he or she cannot reveal the existence or contents of the letter, private party complies, and the target of the search never learns that his or her privacy has been invaded (and thus never has the opportunity to challenge the search in court).

I understand the arguments in favor of this procedure, but one of the strongest objections against this is that the entire reason for the warrant requirement is that YOU CAN'T TRUST THE EXECUTIVE to respect the law with respect to the awesome power of search and seizure. It isn't the fact that unreasonable searches are prohibited, but the fact that you have to bring the application before a judge, which protects people's privacy. Without judicial review, the Fourth Amendment would be a dead letter (bad pun, I know).
9.6.2007 8:50pm
John (mail):
A society should have the ability to choose which of various officers gets to decide controversies among its citizens. In our society, we use the courts for just about all of these, but there is no necessary reason to do so.

Congress could, I believe, constitutionally decide that some administrative agency was to be the final arbiter of disputes of some type, and withdraw jurisdiction from the courts over such matters. Of course, it has tried to do just that with some of the militarey tribunal issues working their way through the courts now. Personally, if you believe that Congress more accurately reflects our views of who ought to decide these things than the courts--as I do--I hope the Supreme Court honors that decision.

But I digress. The hubris of the court in the decision here is disheartening, but typical. Some one needs to tell judges that they are not, by grace of god, the final arbiter of all disputes. They hold that power by the grace of the people, acting through their representatives in congress. Unfortunately, no judge seems to believe this.
9.6.2007 9:06pm
There is this document, though, that vests the judiciary with the power to decide cases or controversies. I wish I could remember what it's called.
9.6.2007 9:21pm
John (mail):

Yes. I think it's the same one that says Congress gets to decide which cases or controversies those are...
9.6.2007 9:53pm
JohnThompson (mail):
John--we don't get to "choose" the courts. Those are chosen for us, and they are for the most part ignorant liberals who despise this country and its people (a la Breyer) to the very core of their being....
9.6.2007 10:01pm
Dilan Esper (mail) (www):

I will leave aside "liberals who despise this country and its people" and focus on your use of the word "ignorant" to describe Stephen Breyer.

Of all the justices currently sitting on the Court, Stephen Breyer is probably the MOST educated, with extensive knowledge of economics and philosophy as well as a very sharp legal mind. Indeed, you probably have to go back to Cardozo to find someone of equal intellect on the Court.

Really, have you read "Active Liberty"? "The Uneasy Case for Copyright"? Have you read anything the man has written other than perhaps a few Supreme Court opinions? Did you ever read his opinion on the economic loss rule that he authored as a First Circuit judge?

I have my problems with Stephen Breyer (I think he was way off in Raich v. Ashcroft, I don't buy the thesis of "Active Liberty", I think he has a tendency to be underprotective of free speech). But nobody calls this man "ignorant".
9.6.2007 10:59pm
Well, everyone is ignorant of many things including Jusitce Breyer. One wonders if he is aware of his ignorance. If Judges do not believe in their ignorance then yes we have BIG problem. He is not stupid. But his being ignorant is a certanity. The less ignorant a person is the more they admit their ignorance. Or to put it another way --The more you know the more you realize how much you do not know.
9.6.2007 11:07pm
How many in this thread are prepared to attest to their own certain ability to judge the degree of Justice Breyer's ignorance? I see at least two have so indicated...

In any event, it seems quite off topic to be casting aspersions at Breyer's intellect. And, as it was a point raised by someone above, making a comment that is so hyperbolically ad hominem, it seems hardly necessary to debate it.
9.6.2007 11:53pm
I think we all understand judicial review

Really? Given the Government's position in several cases (including its position before the Ninth Circuit in the wiretapping case), I'm not sure that "we" all do understand judicial review.
9.7.2007 1:17am
Only Nancy Pelosi and the Democratic Congress can save us from the judicial tyrants in their black robes, it seems.
9.7.2007 2:47am
fred (mail):
Most outrageous is Judge Marrerro's statement that the legislation was ""the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values"

Acts of the legislature are so despised that he compares them to common criminality?

I have a suspicion he does not object to the hijacking of constitutional values when they are hijacked in the direction he likes.
9.7.2007 10:11am
byomtov (mail):
I will leave aside "liberals who despise this country and its people"


No. Don't leave it aside. Call it what it is - a hate filled brainless rant.
9.7.2007 11:21am
AntonK (mail):
Nice. A judge lecturing us on how important judges are. I'm quite sure that any Soviet-era judge in the USSR could've delivered the same lecture.
9.7.2007 12:21pm
cboldt (mail):
-- Some one needs to tell judges that they are not, by grace of god, the final arbiter of all disputes. --
By the grace of the people speaking through the Constitution, judges are the final arbiter of some disputes.
The question then is whether or not the Courts have a place in THIS dispute. And then, if they do, one might proceed to criticize the Court's argument and assertion of power in THIS case, on the merits.
9.7.2007 1:33pm
John: Congress could, I believe, constitutionally decide that some administrative agency was to be the final arbiter of disputes of some type, and withdraw jurisdiction from the courts over such matters.

Remove appellate jurisdiction from the Supreme Court, yes (although I would view that with great suspicion). Possibly even remove judges from the equation elsewhere. However, I(AmNotALawyer) can't see how any attempt to remove courts — specifically, juries — from most dispute proceedings (civil over $25, any criminal) could survive the sixth and seventh amendments.

John: Personally, if you believe that Congress more accurately reflects our views of who ought to decide these things than the courts--as I do--I hope the Supreme Court honors that decision. [...] Some one needs to tell judges that they are not, by grace of god, the final arbiter of all disputes. They hold that power by the grace of the people, acting through their representatives in congress.

Wrong. Judges hold power by the grace of the people, period. The power of the people ultimately lies in the power to establish and disestablish the means of government, enshrined in Article V and Amendment II. The people's expression of their power via the Legislative branch is incidental to the ultimate basis.

The Constitution says that there are some things that the government May Not Do... largely, based from the experience of history: governments that Do, fall at the hands of the people, at tremendous cost in life and wasted resources. It is desirable to avoid that. At present, courts serve as the final internal check of the government to prevent it from overstepping these bounds. If these bounds are overstepped, you leave only those two means for such restraint against an impulsive legislature. The stringent requirements of constitutional conventions preclude them being used by a large-but-aggrieved minority — say, a sixth of the population. However, this fraction is quite large enough to start a civil war.

Given how few people react until their own personal ox is gored (Old joke: "A conservative is a liberal that just got mugged; a liberal is a conservative that just got arrested"), this leaves the restraint of the courts as the last restraint between bad impulses of the Government and beginning a slide towards a full fledged civil war. As bad as the War on Terror is, Civil War is inherently worse. Study your history.

fred: Acts of the legislature are so despised that he compares them to common criminality?

Some acts, yes, conspiracy of uncommon criminality; 18 USC 241 seems relevant. Alas, finding the means to press charges would be a problem.
9.7.2007 2:06pm
Kelvin McCabe:
I think Article III Section 2 settles the dispute. For it quite clearly declares that the "judicial power" shall extend to all cases &controversies in law and equity, arising under the constitution or laws of the United States, etc...

In this case, there is a law of the United States that someone felt violated certain sections of the U.S. Constitution's Bill of Rights. They challenged said law and won. Now, if the Congress were to pass a statute that alleged to strip the courts of jurisdiction to hear cases or controversies regarding National Security Letters or Patriot Act provisions, I think that this jurisdiction stripping statute itself would likewise be subject to the judicial power, since it too would be a law of the United States, all of which are subject to the judicial power as layed out in the Constitution.

Is anyone seriously arguing here that Congress can itself declare which of its acts are constitutional and which not? Surely a validly enacted statute is presumed constitutional, but the presumption does not carry the day, especially if the statute conflicts with certain constitutional amendments, such as the 1st and 4th.
9.7.2007 3:19pm
Phutatorius (www):
Hm. It seems to me that every part of a government, however it's configured, is going to be power-grabby. The government that works best is the one that finds a kind of workable equilibrium that doesn't, as abb3w just wrote, end in Molotovs and gunplay.

These new (dare I call them "radical?") theories on the right challenging judicial review insist on the coequal abilities and entitlements of the political branches to "interpret" the Constitution. We could talk until the cows come home about whether Congress and the Executive are morally and intellectually equipped to "handle" constitutional interpretation on an equal footing with the judiciary.

But in the end we'd reach no firm, agreed conclusions -- and we'd have a herd of cattle grazing the shag carpet in our living rooms.

So let's try this, instead. From a prudential standpoint, it seems to me that the part of government with the most guns is the one worst-positioned to say, "Trust us -- we can interpret the constitution and be the best steward of individual rights and the structural separation of powers." Well, they're actually the best-positioned to say that (because of the guns), but they're the ones we should trust least (again, because of the . . . you know where I'm going here).

If the United States is (and I would challenge this premise, but I know people here endorse it) the classic example of "Judges Gone Wild," then I'd have to counter that the quintessence of "Executive Gone Wild" is Zimbabwe. Now again, I won't presume to speak for anyone else on this board, but I'd rather live here.

Now of course I can hear the challenges already: "well, Phutatorius, that's because you're not an unborn fetus, or a spermatozoonin search of an ovum." Well, fine: you got me. And I'll even add myself that if we don't give due respect to the "public use" requirement of the Fifth Amendment, then we're on a slippery slope that ends with Mugabe's "Operation Drive Out the Rubbish." But that latter point, one the conservatives on this board support, calls for a greater empowerment of the judiciary.

Giving judges the Final Word on What The Law Is isn't a perfect solution, but it's better than anything else (cheers, Mr. Churchill). And you have to give props to the political branches -- particularly the Executive -- for swallowing the judgments of courts, saying "we'll get 'em next time," and moving on. If we can learn anything from the world's failed democracies (Zimbabwe included) it's that gestures of obeisance on the Gun-Toting Executive's part make all the difference.

I'll end with a minor point: no one's wrenched The Power To Say What The Law Is from the political branches. First, there are quite a few contexts in which courts get cut out of the process -- for example, when Congress writes a ridiculous maximum sentence into a criminal law, then DOJ takes an extremely aggressive reading of the crime's substantive elements. A defendant offered a plea bargain gets confronted with a risk calculus that all but commands him to accept the Executive's view of what constitutes a crime: because he doesn't want to take chances with the maximum sentence in court. And second, every time the Executive complies with a court order on a constitutional point, it "interprets" the Constitution consistently with the Court's view in Marbury. With guns in hand, it doesn't have to accept the Court as the final word. But it does.

So in a way, we're already playing this game of concurrent jurisdiction to interpret the Constitution. And I admire the wisdom and restraint that the Executive tends to exercise in its interpretation at least as much as the wisdom and restraint that judges show in theirs. To be sure, there will always be conflict over the measure of restraint each side shows. But that's what keeps tension in the rope, and this is a tug-of-war we don't want anyone to win.
9.7.2007 3:38pm
SurryDog (mail):
With his 100+ page opinion on national security letters and the importance of judicial review, Judge Marrerro ignores the Supreme Court's 1976 holding in United States v. Miller, where the Court held that persons and entities have no reasonable expectation of privacy in business records maintained by third parties. In Miller, the Court held that the FBI could obtain financial records from a bank without a search warrant, and without a subpoena. It was the Legislative Branch that provided privacy accords to financial records in the Right to Financial Privacy Act, and in providing certain privacy rights it also provided the government with access to them via process, including NSLs.
9.10.2007 5:18pm