06 September 2007

Another Judge Sacrifices His Promotability

Judge Victor Morrero of the United States District Court for the Southern District of New York has joined the ranks of US District Judges who cannot be confirmed to a higher court… because he did his job, and did it well. Actually, he joined that group a couple of years ago, but he has confirmed his right to that status with his ruling today that so-called "National Security Letters" under the so-called "Patriot Act" are unconstitutional, even with Congress's pathetic tweaking in an attempt to evade his prior ruling in the same case.

Accordingly, the issue now before the Court is not whether, or under what circumstances, the government should possess the authority to issue [National Security Letters]. Rather, the more fundamental quesiton is the extent of the authority that the First Amendment allows the government to exercise in keeping its use of NSLs secret, insofar as such secrecy inhibits freedom of speech.

The Court's review of First Amendment jurisprudence yields two primary conclusions. First, the government's use of nondisclosure orders must be narrowly [] tailored on a case-by-case basis. That is, a nondisclosure order may not be broader in either scope or duration than the degree of secrecy required to serve the government's interest in protecting national security. Second, the nondisclosure orders must be subject to meaningful judicial review. To conform to prevailing constitutional norms as read by this Court, taking into account the unique latitude and added flexibility national security needs demand under ordinary circumstances, as well as the practicalities of surveillance work before a target is adequately identified, in issuing and NSL the government must either affirmatively terminate the nondisclosure requirement or bear the burden of justifying to a court why continued secrecy is necessary within a reasonable period of time after the FBI issues and NSL containing a nondisclosure order.

Additionally, and in many ways most troubling, this Court finds that the standard of review the Reauthorization Act directs that the courts must apply when a nondisclosure order is challenged[] offends the fundamental constitutional principles of checks and balances and separation of powers. Independent of the First Amendment deficiencies identified by the Court, the deferential standard of review imposed on reviewing courts by § 3511(b) fails not only because it creates too great a danger that constitutionally protected speech will be suppressed, but more fundamentally because it reflects an attempt by Congress and the executive to infringe upon the judiciary's designated role under the Constitution. To conform with § 3511(b) as drafted, a court reviewing a nondisclosure order must apply not the standard of review the judge determines is mandated by constitutional law, but an overly deferential standard imposed by Congress. It is axiomatic that in our system of government it is the province of the courts to say what the law is. When Congress attempts to curtail or supersede this role, it jeopardizes the delicate balance of powers among the three branches of government and endangers the very foundations of our constitutional system. Thus, for this reason as well, § 3511(b) fails.

Doe v. Gonzales, No. 04–2614 (S.D.N.Y. 06 Sep 2007), slip op. at 25–27 (PDF file, 2.3mb, at American Civil Liberties Union).