On every single day of every single calendar year, an average of 137 men and women in the US have been receiving letters from the government that can only be seen as either tragic or hilarious.
Experience with these missives since their inception in 1978 strongly suggests that hilarious is not winning first place.
These are not “get out the vote” letters from candidates. They don’t contain news of the campaigns’ latest sex scandals. They aren’t for raising funds. If they’re raising anything it’s blood pressure and hackles.
And they’ve been having that effect for more than a decade. It was following the terrorist attacks of 9/11 that a bleary-eyed and clearly fearful Congress convened to pass the USA Patriot Act – a potpourri of existing and new laws designed to prevent the Jihadis from annihilating America.
The law – actually an old law greatly expanded — had been printed only the night before the vote. Most members of Congress had time only to skim it, if that. The vote in the Senate was 99-1. Only Senator Russ Feingold, Democrat from Wisconsin, had the guts to vote “no.”
Attorney General John Ashcroft dodged a heart attack and President George W. Bush quickly demonstrated his penmanship.
Now, one of the provisions in the new law was known as the National Security Letter (NSL). NSLs are, effectively, administrative subpoenas. They are extensively used by the FBI – it’s estimated that some 50,000 NSLs are issued annually.
The letters order specific entities or organizations to turn over various records and data pertaining to individuals, usually members or customers. No probable cause or judicial oversight is required.
The original versions of the law also contained an order of silence that prohibits the recipient of the letter from disclosing that the letter was ever issued. Disclosing it to anybody – lawyer, wife, doctor, clergy, and so forth, under penalty of criminal prosecution.
Constitutional? Well, on the face of it, as the lawyers like to say, it would seem deeply flawed at a number of levels. Violation of the Fourth Amendment against unreasonable searches and seizures is but only one of them. Another is the “gag order,” which strips away the Constitutional first amendment guarantee of freedom of speech. Only the courts can impose such a penalty, and judges use it sparingly and for short periods of time only. The gag order has been ruled unconstitutional.
On the Search and Seizure issue, listen to Chip Pitts, former head of Amnesty and currently a lecturer in law at Stanford and Oxford. Here’s what he told Prism:
“National Security Letters violate Fourth Amendment rights to freedom from unreasonable searches and seizures without a warrant and probable cause to believe a crime or terrorism was involved, which also have been eroded by the FISA Amendments Act (allowing the Bush-era illegal warrantless surveillance of Americans’ phone calls, emails, and web-surfing habits).”
And he adds: “The evidence is overwhelming that other sections of the Patriot Act also trample on civil liberties — provisions including section 505 regarding the notorious and repeatedly abused National Security Letters (allowing the FBI to search a wide variety of library and business records without probable cause, any judicial review, or notifying the target); section 215 (the library and business records provision requiring the secret FISA court to approve searches on a mere ‘relevance’ standard and probably also being interpreted to allow a secret datamining program some Senators say would ‘stun and ‘anger’ the US public if revealed); section 213 (allowing sneak and peek” secret black bag job searches of homes); and section 218 (basically importing expansive foreign intelligence surveillance powers into domestic criminal law).”
The New York Times points out that the 2001 Act did not create the NSL authority. However, it lowered the standard. “Before passage of the 2001 Act, the government had to have specific and articulable facts demonstrating that the information sought pertained to a foreign power or an agent of a foreign power. The 2001 Act provides that the FBI may use NSLs to obtain information from a ‘wire or electronic communication service provider’ that is merely ‘relevant to an investigation to protect against international terrorism or clandestine intelligence activities’.”
In “Tales from Stasiland: The letter that makes you disappear,” Scott Horton writes, “One of the creepier weapons in the arsenal of the national-security state is the ‘national-security letter’ or NSL. It’s no ordinary letter, and it travels postage-free, but at enormous expense to the taxpayers. The FBI issues roughly 50,000 of them a year, and the Justice Department’s own internal review in 2007 concluded that many of them were issued abusively, skirting the law and (insert hyperlink) internal rules.”
The Constitutional lawyer and columnist for Harpers Magazine goes on: “The idea is simple: the device is something like a subpoena, though it doesn’t require approval of a judge to issue. Instead, the FBI requires the recipient to help it in an investigation targeting a third party. It might be dropped on a librarian, with a demand that she tell the FBI every book that a certain subscriber checked out, every magazine he perused, and every time he accessed the Internet using a computer at the library. Or it might go to an Internet service provider, requiring information about every website viewed by a certain customer.”
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