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
Big Brother spying alone eroded them. It's ongoing lawlessly in many
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
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
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
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
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
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
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
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.
(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
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
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
Stephen Lendman lives in Chicago and can be reached at firstname.lastname@example.org.
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
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