Thursday, May 08, 2008

A Line in the Sand 

We are great admirers of Sen. Russ Feingold, and although we found his L.A. Times op-ed on the subject of Mr. Bush's secret laws mostly admirable, we must take issue with one term he uses in the excerpt directly below. When the executive branch can ignore or emend the law of the land at whim, behind the backs of the electorate, the nation we inhabit cannot reasonably be called a "democracy":
It's a given in our democracy that laws should be a matter of public record. But the law in this country includes not just statutes and regulations, which the public can readily access. It also includes binding legal interpretations made by courts and the executive branch. These interpretations are increasingly being withheld from the public and Congress.

Perhaps the most notorious example is the recently released 2003 Justice Department memorandum on torture written by John Yoo. The memorandum was, for a nine-month period in 2003, the law that the administration followed when it came to matters of torture. And that law was essentially a declaration that the administration could ignore the laws passed by Congress . . . .

Another body of secret law involves the Foreign Intelligence Surveillance Act (FISA). In 1978, Congress created the special FISA court to review the government's requests for wiretaps in intelligence investigations, which is -- and should be -- done behind closed doors. But with changes in technology and with this administration's efforts to expand its surveillance powers, the court today is doing more than just reviewing warrant applications. It is issuing important interpretations of FISA that have effectively made new law.

These interpretations deeply affect Americans' privacy rights, and yet Americans don't know about them because they are not allowed to see them. Very few members of Congress have been allowed to see them either. When the Senate recently approved some broad and controversial changes to FISA, almost none of the senators voting on the bill could know what the law currently is . . . .

No one questions the need for the government to protect information about intelligence sources and methods, troop movements or weapons systems. But there's a big difference between withholding information about military or intelligence operations from the public and withholding the law that governs the executive branch. Keeping the law secret doesn't enhance national security, but it does give the government free rein to operate without oversight or accountability . . . . Congress and the public shouldn't have to wonder whether the executive branch is following the laws that are on the books or some other, secret law.
The descent into tyranny is always a shorter one than we would like to imagine, shorter yet when ordinary citizens, through indifference, intimidation, or simple ignorance, acquiesce in the abrogation of their rights. That is why we must doff the imperial diadem to Zemblan patriot Brewster Kahle, inventor of WAIS, founder of Alexa Internet, and current director of the Internet Archive (which maintains and operates, among other worthy online projects, the Wayback Machine). We were shocked to learn, upon opening this morning's S.F. Chronicle, that Mr. Kahle has been embroiled in an ongoing contretemps with the FBI, and although he has never, in our presence, said a word about it, we are delighted to forgive him the oversight. He stood up, invoked the rule of law, and made the government blink:
Brewster Kahle, who runs an online library in San Francisco, was appalled when his volunteer lawyers told him in November that the FBI was demanding records of all communications with one of his patrons as part of an investigation of "international terrorism or clandestine intelligence activities."

The FBI document, called a national security letter, told Kahle he could be prosecuted if he discussed the subject with anyone but his lawyers, and allowed him to speak with his attorneys only in person. Kahle said his Internet Archive, which has 500,000 card-holders, doesn't even keep the records the FBI was seeking.

He was allowed to speak publicly Wednesday under a rare settlement in which the FBI agreed to withdraw its letter and lift the gag order. That should show other librarians, and members of the public who receive any of the nearly 50,000 national security letters the government issues each year, that "you can push back on these," Kahle said.

National security letters are subpoenas issued by federal agencies to require businesses and other institutions to produce records of their customers. The agencies do not need court approval for the letters.

A 1986 law initially authorized their use against suspected spies, but the USA Patriot Act, passed after the terrorist attacks of Sept. 11, 2001, allowed agents to seek records of anyone connected to a foreign terrorism or espionage investigation, even if the target is not a suspect.

The Bush administration has increasingly used the letters to sidestep a 1978 law requiring federal agents to get a warrant from a special court, in a secret session, to obtain similar records. A law passed in 2006 bars agents from issuing national security letters to libraries, with some exceptions, and requires regular audits by the Justice Department's inspector general, who has found thousands of cases of misuse of the letters.

A federal judge in New York ruled national security letters unconstitutional in September, saying the gag order violated free speech and interfered with judicial authority. The government has appealed.
The bad news: according to Mr. Kahle's lawyers, there are only two other cases in which a national security letter has been challenged in court. As EFF attorney Marcia Hoffman put it, "The big question is, How many other improper (letters) have been issued by the FBI and never challenged?"

(Feingold link courtesy of our goldarndest colleague Avedon Carol.)

UPDATE: From Wired.com we learn that, of the three known court challenges to an NSL, "all of [them] ended with the FBI rescinding the NSL . . . . The ACLU has successfully quashed two other NSLs, including one request to a library system asking for web surfing histories of patrons and another to a small New York hosting provider asking for data about a website it hosted. The Internet Archive case is only the second time the courts allowed the recipient of a Patriot Act National Security Letter to reveal his or her identity."

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