No Easy Answers

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. §

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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.

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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

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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

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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.

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posted by cboldt  # 9/06/2007 02:20:00 PM