Source: Doe and ACLU v. Gonzales 05-0570-cv(L) and 05-4896-cv(CON) (2nd Cir. 2005)
This is not the entire opinion, although the entire opinion is necessary to obtain the formal legal posture of the two cases consolidated for appeal.
Why post this now? Because Judge Morrero has today, September 6, 2007, issued a 106 page opinion on the remand, again finding parts of the USA PATRIOT Act to be unconstitutional.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ________________ August Term, 2005 (Argued: November 2, 2005 Decided: May 23, 2006) Docket Nos. 05-0570-cv(L), 05-4896-cv(CON) ________________ JOHN DOE I, JOHN DOE II, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Plaintiffs-Appellees, v. ALBERTO GONZALES (IN OFFICIAL CAPACITY AS ATTORNEY GENERAL), ROBERT S. MUELLER III (IN OFFICIAL CAPACITY AS DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION), MARION E. BOWMAN (IN OFFICIAL CAPACITY AS SENIOR COUNSEL OF THE FEDERAL BUREAU OF INVESTIGATION), JOHN ROE, Defendants-Appellants. ________________ Before: CARDAMONE, MCLAUGHLIN, B.D. PARKER, Circuit Judges. ________________ Consolidated appeal from (1) a final judgment of the United States District Court for the Southern District of New York (Victor Marrero, J.) declaring 18 U.S.C. § 2709 unconstitutional as applied to John Doe I on First and Fourth Amendment grounds, and declaring 18 U.S.C. § 1
2709(c) unconstitutional on its face on First Amendment grounds (Gonzales v. Doe I, No. 05- 0570); and (2) a grant of a preliminary injunction of the United States District Court for the District of Connecticut (Janet C. Hall, J.) declaring 18 U.S.C. § 2709(c) unconstitutional as applied to John Doe II on First Amendment grounds (Gonzales v. Doe II, No. 05-4896). Gonzales v. Doe I, No. 05-0570, is VACATED and REMANDED. Gonzales v. Doe II, No. 05-4896, is DISMISSED. Judge Cardamone concurs in the judgment of the Court, and files a separate concurring opinion. _________________ CARDAMONE, Circuit Judge, Concurring: I concur in the judgment of the court. I write separately to address an argument the government continues to press notwithstanding the recent amendments to 18 U.S.C. § 2709(c). The question previously before us was whether subsection (c), which imposed a permanent ban on speech, ran afoul of the First Amendment. The Reauthorization Act has altered the functioning and perhaps the scope of § 2709(c)'s gag provision, and that is why we are remanding the New York case (Doe I) for further proceedings and dismissing the Connecticut case (Doe II). Yet, in its recent letter briefings to the panel, the government perseveres, insisting that a permanent ban on speech is permissible under the First Amendment. This issue warrants comment, especially because I suspect that a perpetual gag on citizen speech of the type advocated so strenuously by the government may likely be unconstitutional. Prior to the passage of the Reauthorization Act the government sought enforcement of 18 U.S.C. § 2709 (as amended by the USA PATRIOT Act), and specifically § 2709(c), the non- disclosure provision at the heart of the two appeals. Section 2709(c) provided that no recipient of a National Security Letter (NSL) "shall disclose to any person" that they received such a letter. 18 U.S.C. § 2709(c) (2000). ^3 By its terms the statute permanently prohibited a recipient from ever disclosing the fact of having received an NSL. See Butterworth v. Smith, 494 U.S. 624, 626 (1990) (finding similarly worded statute as permanently prohibiting disclosure of grand jury testimony). The government, while conceding the permanent bar, nonetheless declared that § 2709's non-disclosure provision was fully consistent with the First Amendment. Such a --- 3 The new § 2709(c) (as amended by the Reauthorization Act) contains this language modified by additional language. 11
proposition should be greeted with a healthy dose of judicial skepticism. A permanent ban on speech seems highly unlikely to survive the test of strict scrutiny, one where the government must show that the statute is narrowly tailored to meet a compelling government interest. See Ashcroft v. ACLU, 542 U.S. 656, 665-66 (2004); Kamasinski v. Judicial Review Council, 44 F.3d 106, 109 (2d Cir. 1994) (applying strict scrutiny to Connecticut judicial investigation gag statute). It seems to me that courts resolve the tension between the government's interest in maintaining the integrity of its investigative process and the First Amendment in favor of the government so long as the ban on disclosure is limited. The cases also hold that a ban on speech is not constitutionally permissible once the investigation ends. For instance, the Supreme Court in Butterworth teaches that a "permanent ban on disclosure of [a witness's] own testimony once a grand jury has been discharged" violates the First Amendment. 494 U.S. at 632. Similarly in Kamasinski, we "conclude[d] that [a] limited ban on disclosure of the fact of filing or the fact that testimony was given does not run afoul of the First Amendment." 44 F.3d at 111 (emphasis added). But, we further held that "the ban on disclosure is constitutional only so long as the [government] acts in its investigatory capacity." Id. at 112. The government advanced the "mosaic theory" as one of the reasons to support a permanent ban on speech. That theory envisions thousands of bits and pieces of apparently innocuous information, which when properly assembled create a picture. At bottom the government's assertion is simply that antiterrorism investigations are different from other investigations in that they are derivative of prior or concurrent investigations. Thus, permanent 12
non-disclosure is necessary because, implicitly in the government's view, all terrorism investigations are permanent and unending. The government's urging that an endless investigation leads logically to an endless ban on speech flies in the face of human knowledge and common sense: witnesses disappear, plans change or are completed, cases are closed, investigations terminate. Further, 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. Moreover, with regard to having something be secret forever, most Americans would agree with Benjamin Franklin's observation on our human inability to maintain secrecy for very long. He wrote "three may keep a secret, if two of them are dead." Benjamin Franklin, Poor Richard's Almanack 8 (Dean Walley ed., Hallmark 1967) (1732). In fact, what happened in the Connecticut case bears out Franklin's astute observation. While striving to keep the identities of the Connecticut plaintiffs secret, the government inadvertently revealed their identities through public court filings. This revelation was widely reported in the media. Thus, the case assumed the awkward posture where the identities of the Connecticut plaintiffs were published, yet the government continued to insist that the Connecticut plaintiffs may not identify themselves and that their identities must still be kept secret. This is like closing the barn door after the horse has already bolted. Since the passage of the Reauthorization Act, the government asserts that we should vacate the District of Connecticut's preliminary injunction rather than leaving it unreviewed on 13
appeal. See per curiam, supra at 7-8. To me, the government's request for vacatur in the Connecticut case is not surprising, but right in line with the pervasive climate of secrecy. It sought to prevent, through § 2709(c), the Doe plaintiffs from ever revealing that they were subjects of an NSL, effectively keeping that fact secret forever. Then, by requesting vacatur of the decision below, the government attempts to purge from the public record the fact that it had tried and failed to silence the Connecticut plaintiffs. While everyone recognizes national security concerns are implicated when the government investigates terrorism within our Nation's borders, such concerns should be leavened with common sense so as not forever to trump the rights of the citizenry under the Constitution. Cf. Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) ("[A] state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."). As Justice Black wrote in New York Times Co. v. United States, 403 U.S. 713 (1971): "The word 'security' is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic." Id. at 719 (Black, J., concurring). Although I concur in the per curiam that declines to resolve the novel First Amendment issue before us on this appeal, that does not mean I think that issue unworthy of comment. Hence, this concurrence. 14
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