The government doesnt always win its demands for secrecy. In 2004 and 2005, two courts considered challenges to the gag order provisions of National Security Letters (NSLs), which the #FBI uses by the truckload to search personal records without the usual Fourth Amendment prerequisites for getting a warrant. The USA PATRIOT Act, passed quickly by Congress after September 11, 2001, expanded the FBIs power to use NSLs if they are relevant to a terrorism or intelligence investigation. NSLs prohibit the recipient (the keeper of the records) from disclosing the fact of their existence.5 In the two court challenges, the judges ruled that the NSLs automatic gag orders violate the First Amendment. One of them explained: The self-preservation that ordinarily impels our government to censorship and secrecy may potentially be turned on ourselves as a weapon of self-destruction. … A categorical and uncritical extension of non-disclosure may become the cover for spurious ends that government may then deem too inconvenient, inexpedient, merely embarrassing, or even illicit to ever expose to the light of day. At that point, secrecys protective shield may serve not as much to secure a safe country as simply to save face.6 Similarly, when these cases got up to the court of appeals, one judge, Richard Cardamone, said of the gag orders: A ban on speech and a shroud of secrecy in perpetuity are antithetical to democratic concepts and do not fit comfortably with the fundamental rights guaranteed American citizens. Unending secrecy of actions taken by government officials may also serve as a cover for possible official misconduct and/or incompetence.7 fepproject.org/commentaries/secrecy.html
Posted on: Wed, 23 Jul 2014 17:56:54 +0000
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