A Stitch in Haste

I was blogging about National Security Letters ("NSLs") before it was fashionable, as I reported on a case working its way through the federal courts in which the plaintiffs — who are forbidden by the PATRIOT Act from even identifying themselves — are challenging the constitutionality of NSLs.

To review, an NSL is simply a demand by the government for information. Which, in a sane world still governed by the Fourth Amendment, would require a warrant issued by a judge based upon probable cause. But this is no longer a sane world governed by the Fourth Amendment. Not only is no warrant needed, not only is no demonstration of probable cause needed, but the entire process is kept completely secret, supposedly justified by "national security" (hence the term "national security letter").

The subjects of NSLs never know that their information has been turned over to the government. What's worse, the entities ordered by the government to turn over information are not even allowed to disclose that fact. The suppression of disclosure is so thorough that even the pleadings in lawsuits challenging NSLs must be redacted to conceal the institutions' identities (it is generally believed that the plaintiffs in the most publicized litigation are university libraries that are challenging NSLs for foreign students' checkout records).

Now comes word that the use of NSLs, which the government initially assured the public would be sparingly if ever used, has reached epidemic proportions:

The FBI now issues more than 30,000 national security letters a year, according to government sources, a hundredfold increase over historic norms. The letters — one of which can be used to sweep up the records of many people — are extending the bureau's reach as never before into the telephone calls, correspondence and financial lives of ordinary Americans.
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The Bush administration defeated legislation and a lawsuit to require a public accounting, and has offered no example in which the use of a national security letter helped disrupt a terrorist plot.

Perhaps I'm too cynical, but I have no doubt that the reason the government has not offered any example of an NSL actually stopping a terrorist is because it has never happened.

But wait, there's more:

In late 2003, the Bush administration reversed a long-standing policy requiring agents to destroy their files on innocent American citizens, companies and residents when investigations closed. Late last month, President Bush signed Executive Order 13388, expanding access to those files for "state, local and tribal" governments and for "appropriate private sector entities," which are not defined.

So now not only is the Fourth Amendment optional, but so too is the notion that private information seized in named of "national security" should be shared within government on a "need to know" basis only. Heck, give it to states, to Indian tribes, to Halliburton — the more the merrier.

Someone has to start standing athwart all this yelling "Stop!" Again, in a sane world that would be the responsibiility of the courts. But even they're cowering in the face of the PATRIOT Act and deferring to "the experts" in deciding just how far the War on Terror will overlap the War on Privacy.

To the extent the goal of the terrorists is "to destroy the American way of life," they are succeeding — with the help of the PATRIOT Act, the FBI, the White House, and the spineless courts.

Hopefully the current NSL cases in Connecticut and the Second Circuit will be the beginning of the end of NSL abuse, and perhaps of the PATRIOT Act itself.

More thoughts at Crime & Federalism, Hammer of Truth, LP Blog.

(And remember: The fact that you have read this blogpost may end up in a government database somewhere. Have a nice day.)