Reauthorized Patriot Act Still Unconstitutional, ACLU Says
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CONTACT: media@aclu.org
ACLU Returns to Court to Battle Controversial Surveillance Law
NEW YORK -- The American Civil Liberties Union and the New York Civil Liberties Union announced today that they have returned to court to challenge the constitutionality of the reauthorized Patriot Act's National Security Letter (NSL) provision. The provision permits the FBI to prohibit anyone who receives an NSL from disclosing that the FBI has sought or obtained information from them.
"The secrecy surrounding the FBI's use of national security letters is excessive and dangerous," said Jameel Jaffer, the ACLU lawyer who is lead counsel in the case. "By permitting the FBI to operate without meaningful public or judicial oversight, Congress has undermined important safeguards against abuse."
The ACLU filed the case in April 2004 on behalf of an Internet Service Provider that had received an NSL and was prohibited from disclosing that the FBI had sought information from it. In September 2004, the district court struck down the NSL provision as unconstitutional, with Judge Victor Marrero writing that "democracy abhors undue secrecy." In his landmark ruling, Judge Marrero held that indefinite gag orders imposed under the NSL law violate free speech rights protected by the First Amendment.
The government appealed the decision to the Second Circuit Court of Appeals, and oral argument was heard in November 2005. Before the court issued a decision, however, Congress amended the NSL provision. In May 2006, the appeals court issued a ruling asking the district court to consider the constitutionality of the amended law. In a concurring opinion, Judge Richard Cardamone strongly criticized the government for continuing to argue that a permanent ban on speech would be permissible under the First Amendment.
"A ban on speech and a shroud of secrecy in perpetuity are antithetical to democratic concepts and do not fit comfortably with the fundamental rights guaranteed American citizens," wrote Judge Cardamone. "Unending secrecy of actions taken by government officials may also serve as a cover for possible official misconduct and/or incompetence."
Judge Cardamone added that national security concerns "should be leavened with common sense so as not forever to trump the rights of the citizenry under the Constitution."
The Internet Service Provider is still gagged and is identified as "John Doe" in the legal papers made public today. The legal papers were originally filed under seal because of the gag provision, and redacted versions were made available today under procedures put in place by the court.
In its legal papers, the ACLU argues that the gag provision, which is still present in the amended NSL statute, violates the First Amendment by giving the FBI the authority to suppress speech without prior judicial review. The ACLU also argues that the provision is unconstitutional because, while it permits courts to review gag orders after they are issued, the provision requires courts to defer to the FBI's view that secrecy is necessary.
The ACLU said that the gag provision has had significant effects on the John Doe plaintiff. John Doe was prevented from participating in the contentious Patriot Act reauthorization debate that raged across the nation in late 2005 and early 2006. Even though it had firsthand knowledge of this sweeping FBI power, the gagged Internet Service Provider could not mention the fact that it had received an NSL, divulge the breadth of the letter, or discuss the ramifications on its business relationships. According to news reports, the government now issues 30,000 NSLs every year.
"The Patriot Act dramatically expanded the FBI's authority to monitor the communications and activities of people living in the United States," said Jaffer. "Yet by permitting the FBI to silence those with direct experience of the new laws, Congress has denied the public any means of ensuring that the new surveillance authorities are being used lawfully and responsibly."
In a similar case, the ACLU represented four librarians who are on the board of Library Connection, a library consortium in Connecticut. The consortium was served with a NSL and challenged both the letter and the accompanying gag. After many months of litigation, the government withdrew its demand for information and abandoned the gag order.
Last week, the Supreme Court ordered that legal documents in the case sealed by the government and the courts be made public. The documents revealed that government attorneys had censored, among other non-sensitive information, whole newspaper articles and direct quotes from Supreme Court opinions that undercut the government’s arguments in the case.
A copy of the redacted complaint made public today is online at
www.aclu.org/safefree/nationalsecurityletters/26402lgl20060807.html
More information about this case is available at
www.aclu.org/nsl
Attorneys in the case are Jaffer, Ann Beeson and Melissa Goodman of the ACLU, and Arthur Eisenberg of the New York Civil Liberties Union.
National Security
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Press ReleaseDec 2024
Free Speech
National Security
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Press ReleaseDec 2024
National Security
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VirginiaDec 2024
National Security
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Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
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ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.