Court Nixes National Security Letter Gag Provision 128
2phar sends news that on Monday a federal appeals court ruled unconstitutional the gag provision of the Patriot Act's National Security Letters. Until the ruling, recipients of NSLs were legally forbidden from speaking out. "The appeals court invalidated parts of the statute that wrongly placed the burden on NSL recipients to initiate judicial review of gag orders, holding that the government has the burden to go to court and justify silencing NSL recipients. The appeals court also invalidated parts of the statute that narrowly limited judicial review of the gag orders — provisions that required the courts to treat the government's claims about the need for secrecy as conclusive and required the courts to defer entirely to the executive branch." Update: 12/16 22:26 GMT by KD : Julian Sanchez, Washington Editor for Ars Technica, sent this cautionary note: "Both the item on yesterday's National Security Letter ruling and the RawStory article to which it links are somewhat misleading. It remains the case that ISPs served with an NSL are forbidden from speaking out; the difference is that under the ruling it will be somewhat easier for the ISPs to challenge that gag order, and the government will have to do a little bit more to persuade a court to maintain the gag when it is challenged. But despite what the ACLU's press releases imply, this is really not a 'victory' for them, or at least only a very minor one. Relative to the decision the government was appealing, it would make at least as much sense to call it a victory for the government. The lower court had struck down the NSL provisions of the PATRIOT Act entirely. This ruling left both the NSL statute and the gag order in place, but made oversight slightly stricter. If you look back at the hearings from this summer, you'll see that most of the new ruling involves the court making all the minor adjustments that the government had urged them to make, and which the ACLU had urged them to reject as inadequate."
Am I the Only One That Read That As ... (Score:1, Interesting)
Re:no kidding. (Score:-1, Interesting)
SinShiva, if you're ok with some guy who was previously in a loving relationship with a girl, with the consent of her family, having his life destroyed because the relationship turns sour, then you're not over whatever it was that happened to you. LOL, wut?
=Smidge=
Does this only apply in the 2nd district for now? (Score:5, Interesting)
Re:no kidding. (Score:2, Interesting)
Obama voted to reauthorize the USA PATRIOT Act, which extended the Act, but with some amendments. Such amendments would clarify the rights of an individual who has received FISA orders to challenge nondisclosure requirements and to refuse disclosure of the name of their attorney.
He voted against extending the USA PATRIOT Actâ(TM)s Wiretap Provision on March 1, 2006. This bill would give the FBI the authority to conduct âoeroving wiretapsâ and access to business records. Voting against this bill would prolong the debate, keeping the USA PATRIOT Act provisional whereas voting for this bill would extend the USA PATRIOT Act as permanent.
hmm. Wikipedia [wikipedia.org]
Re:great news (Score:5, Interesting)
The President swears to uphold the Constitution, but what if he chooses not to?
As you point out, the worst that happens is the court eventually overrules, but often the damage has already been done and the President can just try again in a slightly modified way.
Is such disregard for the Constitution treason?
At the very least it is an impeachable offense, but only if congress has the will to impeach.
Re:great news (Score:5, Interesting)
The question/task for the future is to figure out how to prevent this sort of abuse from happening again. It has been somewhat disturbing to see how easily your executive can disregard your highest laws with impunity only to have their actions repealed years later.
Actually, this is how we prevent it from happening again. And, to be fair, it wasn't the executive abusing power. He was given it by the congress.
Congress passes all kinds of laws which are later found to be unconstitutional by the court. The ultimate check, in our system, on the congress and president is the judiciary. How would you do it?
George Bush has proven that the American constitution has no teeth.
This case is an example of those teeth. Is it as timely as I would like? No. But I would rather have the correct decision after a well reasoned and thought out case, than a quick gut reflex (which is the role the congress usually plays). Assuming this decision is upheld on appeal, its now basically part of the constitution. I don't want that to be too easy or quick.
Re:great news (Score:2, Interesting)
Impeachment isn't supposed to be easy. How else do you minimize the chances the impeachment isn't politically driven, but to make it hard enough that a consensus is reached on both sides of the aisle.
Golf clap for theory, but let's face it, the only times articles of impeachment have ever been voted on in Congress have all been for political reasons and not for actual Constitutional violations.
Andrew Johnson was impeached for a violation of the Tenure of Office Act (which was passed over his veto) which required Senate approval for the sacking of any executive officer -- including the Secretary of War. (Modern Supreme Court jurisprudence would not allow such restrictions on cabinet level positions directly related to the traditional executive powers, like the exercise of war. A 1926 case later noted in dicta that the Act would've been unconstitutional if challenged.)
In other words, Johnson was impeached for breaking an unconstitutional law. Furthermore, the text of the law was vague enough that it's hard to tell whether he actually violated it or not, given that the Secretary of War wasn't appointed during his tenure, and was fired after his one month grace period hold-over.
The real background of the fight was Johnson's headbutting with Congress over the Reconstruction. He favored an easier process for the Southern states to be readmitted. Congress favored a very harsh Reconstruction and passed laws repeatedly over his veto. The real debate was largely over his politics and not his acts.
Similarly, Clinton was impeached for lying under oath about getting a blow job. The Constitution limits impeachment to "Treason, Bribery, or other High Crimes and Misdemeanors," but the latter term is undefined. Again, the real question here was not any abuse of power by Clinton but pure power politics and an attempt to tarnish the opposition to the majority party in Congress.
Impeachment cannot happen without an opposing party in majority control and with enough spine to stand up unless the President does something REALLY egregious. Otherwise, if he's just pushing the borders of executive power, as long as he does it in a way that his party likes, then impeachment cannot be triggered.