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Lawless National Security Letters
by Stephen Lendman
Email: lendmanstephen (nospam) sbcglobal.net
22 Aug 2012
Lawless National Security Letters
by Stephen Lendman
American freedom always was weak. It's now on life support. Numerous police state laws followed 9/11. Rights most people take for granted are on the chopping block for elimination.
Big Brother spying alone eroded them. It's ongoing lawlessly in many forms.
So-called National Security Letters (NSLs) is one example. Most people never heard of them. Many are victims without knowing it. Those aware are gagged from discussing them. More on that below.
NSLs have been around since the mid-1980s. They involve abusive police state intrusions. Pre-9/11, they had more limited authority to secure records and other personal information on alleged terrorists and spies.
The USA Patriot Act's Section 505 changed things. It permits expanded FBI's authority to obtain personal customer records from ISPs, financial institutions, credit companies, and other sources without prior court approval.
At issue only is claiming information sought relates to alleged terrorism or espionage investigations. No proof is required.
Innocent people are targeted. Virtually anything in public or private records can be obtained. Gag orders prevent targeted individuals or groups from revealing the information demanded. NSL use continues increasing exponentially.
Between 2003 and 2006 alone, the DOJ's inspector general reported nearly 200,000 NSLs issued. By now, they may exceed a million. Using them violates constitutional freedoms. They've eroded enormously en route to disappearing altogether.
Full-blown tyranny is one more state-sponsored 9/11 type attack away. It could come any time.
The Electronic Frontier Foundation (EFF) calls NSLs "one of the most frightening and invasive" police state laws. The FBI's abuse of power already is legendary.
It's operated extrajudicially for decades. It does so with impunity. Giving them more powers compounds America's total surveillance society.
EFF calls NSLs unconstitutional. They're vehicles for institutionalizing abuse. In March 2007, the Justice Department inspector general published a report confirming extensive misuse of authority. An internal FBI audit confirmed it.
At the same time, Attorney General Guidelines and internal FBI documents claimed no criminal laws were broken.
In response, EFF filed Freedom of Information (FOIA) litigation. It sought documentation of NSL abuse. On June 16, 2007, a federal judge ordered 2,500 pages released monthly.
In January 2007, The New York Times headlined "Military Expands Intelligence Role in US," saying:
Pentagon officials use NSLs to spy on Americans. It's part of their "aggressive" domestic intelligence gathering efforts. The CIA and FBI do the same thing. On request, they can get virtually any private information they request.
After The New York Times disclosure, EFF sought Pentagon records. In October 2007, the Department of Defense began producing them.
Since filing FOIA litigation, EFF obtained thousands of documents. They reveal egregious government abuses of power.
Since 2005, EFF petitioned Congress for NSL reform. Bush administration officials blocked it. So did Obama and bipartisan congressional complicity.
On July 17, EFF headlined "EFF Challenges National Security Letter Statute in Landmark Lawsuit," saying:
Since NSL authority was first enacted, "the FBI issued hundreds of thousands of such letters seeking private telecommunications and financial records of Americans without any prior approval from courts."
Prior to 2011, EFF believes challenging NSL constitutionality happened only once. The Department of Justice protects FBI authority to operate extrajudicially.
DOJ uses an aggressive new tactic. It's suing NSL recipients who challenge FBI authority. It claims doing so is lawless.
In other words, DOJ claims standing up for our constitutional rights breaks the law. Claiming it constitutes police state authority. Doing so mocks rule of law principles openly. Everyone is put at risk.
NSLs let federal authorities gag service providers. They're prevented from telling affected customers or the public what's going on.
This constraint violates the First Amendment's procedural prior restraint provision. It lets federal authorities issue a never-ending prior restraint of their own. It forces service providers to comply.
In addition, judicial authority is bypassed. Moreover, recipient telecom and financial companies can't determine if or how the government might overreach or abuse its authority.
As a result, legal challenges are extremely hard. In May 2011, EFF brought one on behalf of one client. It raised the above concerns and others relating to due process and First Amendment rights.
In response, the DOJ filed a civil complaint against the recipient. It alleged that by "stat(ing) its objection to compliance with (NSL) provisions," said person or organization "interfered with the United States' vindication of its sovereign interests in law enforcement, counterintelligence, and protecting national security."
Subsequently, DOJ agreed to a stay. It temporarily suspended its suit. It moved to compel disclosure of subscriber information. It also upheld gag order restrictions.
The petition contesting NSLs is currently pending before the US District Court for the Northern District of California. It will decide if said recipient is permitted to speak publicly and if federal authorities may keep issuing NSLs.
At the same time, if DOJ loses, it will appeal up to the Supreme Court. At issue is legitimizing police state authority. Expect the usual spurious national security issues to be cited. Most likely the High Court will agree.
Freedoms in America are on the chopping block for elimination. Full-blown tyranny approaches. Expect Supreme Court justices to approve. They support power and privilege over doing the right thing.
A Final Comment
According to the Congressional Research Service (CRS), five federal statutes authorize FBI or US intelligence officials to issue NSLs related to national security investigations.
The relevant laws include:
(1) section 1114(a)(5) of the Right to Financial Privacy Act (12 U.S.C. 3414(a)(5)
(2) and (3) sections 626 and 627 of the Fair Credit Reporting Act (15 U.S.C. 1681u, 1681v)
(4) section 2709 of title 18 of the United States Code
(5) section 802 of the National Security Act (50 U.S.C. 436)
Two lower federal courts found "uncertainties, practices and policies associated with" NSLs. They violate First Amendment and other freedoms.
Amended federal law addressed concerns raised by critics and lower court judges. The Second Circuit Court of Appeals dismissed one lower court case. It remanded the other for reconsideration in light of amended law.
The district court remained troubled by First Amendment violations. The appellate court also expressed concerns but ruled the government could invoke authority under 18 USC 2709 and 18 USC 3511 "in a limited but constitutionally acceptable manner."
Federal courts are extremely right wing. The Roberts Supreme Court may be America's worst. When vacancies occur, liberals need not apply.
Democrat and Republican presidents won't nominate them. Senators won't confirm them. The Constitution gives them advise and consent authority.
Since 1789, 160 nominations were submitted. Of these, 124 were confirmed. Seven declined to serve. On June 1, Obama nominated Sonia Sotomayor. On August 6, 2009, she was confirmed.
On May 10, 2010, he nominated Elena Kagan. On August 5, 2010, she was confirmed.
America's most distinguished independent jurists get no consideration. Today, Thurgood Marshall, William Brennan and William O. Douglas wouldn't make the cut. US jurisprudence suffers grievously. So do fundamental freedoms.
Stephen Lendman lives in Chicago and can be reached at lendmanstephen (at) sbcglobal.net.
His new book is titled "How Wall Street Fleeces America: Privatized Banking, Government Collusion and Class War"
Visit his blog site at sjlendman.blogspot.com and listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening.
This work is in the public domain