Yesterday I had the opportunity to attend the 2nd Circuit Court hearing of ACLU (John Doe) vs. Gonzales. Below are some of my notes from that session.
The hearing was held in Courtroom 1705. It was standing room only by 9:50 (with court not scheduled to be in session until 10 am). Connecticut librarians included CLA President Alice Knapp, Welles-Turner (Glastonbury) Library Director and CLA Editorial Committee Chair Barbara Bailey, and Plainville Library Director and CLA Intellectual Freedom Committee Chair Peter Chase. There were also reporters from the New York Times, Washington Post, Hartford Courant, and Connecticut Post.
The case was heard before a three-judge panel. The Connecticut case was combined for the hearing with a New York case (John Doe v. Gonzales) of an Internet Service Provider (ISP) who was also served with a National Security Letter (NSL).
Since the government had lost both cases at the lower level, they were the plaintiff and went first. Douglas Letter argued for the Justice Department. His initial argument was that the lower courts rulings had significant legal errors. He noted that while judicial review is not provided in the NSL, or in section 2709 of the statutes, the Congress can by law, and has said that judicial review is not needed. He also argued that the NSL is administrative not judicial. He further argued that even though Congress did not explicitly provide for judicial review, there is review, and the filing of these two cases proves that.
Two of the judges expressed concern about the fact that the gag order has no time limits. The attorney for the US argued that counterintelligence is different from criminal investigations. Where criminal investigations usually have a finite end, counterintelligence investigations can be spread over "a very long period." He also noted that Grand Jury proceedings are sealed beyond the life of the grand jury. He noted that the investigation is ongoing for this case (he was specifically unclear about whether it was one case or both, and if one, which one). It was also clear that these judges had seen the classified information. He additionally noted that the statute cannot be "substantially overbroad" since it had not been challenged since 1986 until these two cases.
He noted that the Court could lift the gag order upon request. He also noted that there are no sanctions, criminal or civil, in the statutes. If sanctions were needed, the court would be asked for enforcement.
One of the judges expressed concern about the "shroud of secrecy" which is being created in our "open society." The attorney admitted that Congress is in the process of amending this section. He finally argued that the statute is not coercive and is demonstrated by the fact that neither of the John Doe's have provided the information requested, and have filed suit instead.
The ACLU case was argued in two parts with the first part (NY) having the majority of the time. The attorney started by noting that while the US attorney said that anyone within the organization could be consulted/told about the NSL, the wording of the documents is very clear and different, as is the statute.
The major reason why the statute was not challenged until now is related to the fact that from 1986 through 2001, the statute was very narrowly defined, and with the USA PATRIOT Act, was broadened substantially. He quoted statistics on the use of NSLs which we have seen. The other reason for no challenges is because the law is coercive and the language is very clear and specific.
He argued that the "grand jury" argument is inappropriate since grand jury witnesses are only prevented from speaking in very particular cases with very specific circumstances, and those have prior judicial review. He questioned the US attorney's comments about enforcement and noted that the statutes are coercive (versus compelling conduct).
Anne Beeson argued the Connecticut portion. In the whole time she spoke, she was not interrupted by the judges nor was she asked questions after she spoke. One of the reporters said, "it was also good to leave a whole minute on the table."
Anne argued that the issue is not to disclose the target of the investigation, but simply to disclose the name of John Doe. She also noted that even the government admits that there is no reason to continue the gag, and the government refuses to say why. She mentioned ALA (John Doe is a member of the American Library Association...) at least five times in her 7 minutes. She quoted the Supreme Court in saying that "irreparable harm can be assumed whenever speech is suppressed." She noted that John Doe's ability to speak to Congress, during the re-crafting of the law, as a recipient of a NSL, is important and will influence the debate on the law. She specifically asked that the Connecticut case be decided before the New York case since the Connecticut case is on very narrow issues, and the New York case decision will not resolve the Connecticut case.
In rebuttal, the US attorney said that there was no objection on their part to dividing the two cases. He noted that Grand Jury subpoenas do not indicated that the recipient can consult counsel, but that most people do. He first stated that it is possible to change the language on the NSL even without Congressional action, but after questioning by the judge, backpedaled to say he would check into changing the language. He ended by saying that John Doe can speak on the USA PATRIOT Act, he just can't say he received a NSL. [In other words he missed the point.]
At least 1/3 (if not more) of the spectators left the courtroom at the end of the ACLU case. To me this was an indication of how many were there just to hear those arguments.
There are articles in today's Connecticut Post (front page, below the fold), Hartford Courant, and New York Times. We do not get the Washington Post on the date of publication, so I can't check today's paper.
Here are links: