Tearing down the Patriot Act? Doe vs Mukasey: “National Security Letter” gag provisions unconstitutional

The U.S. Court of Appeals for the Second Circuit upheld, in part, a decision striking down provisions of the Patriot Act that prevent national security letter (NSL) recipients from speaking out about the secret records demands. The appeals court invalidated parts of the statute that wrongly placed the burden on NSL recipients to initiate judicial review of gag orders, holding that the government has the burden to go to court and justify silencing NSL recipients. The appeals court also invalidated parts of the statute that narrowly limited judicial review of the gag orders – provisions that required the courts to treat the government’s claims about the need for secrecy as conclusive and required the courts to defer entirely to the executive branch.

The panel has reinstated the government’s capacity to issue such letters, subject to a novel procedural requirement in which the government must initiate judicial review of the non-disclosure order in the event that the letter recipient wishes to contest the order.

Judgment here.
ACLU background here.
NSA analysis of the judgment here.

The Washington Post features also this week a column by Anna Husarska in which she writes that many genuine refugees and asylum seekers have been blacklisted by the USA Patriot Act’s overly broad definition of a “terrorist organization,” a domestic determination with global consequences. In fiscal 2007, about 15,000 refugees were ruled ineligible to enter the United States on grounds related to terrorism.  Publicity has led to exceptions being made for some refugees and some grounds for rejection being waived, but the problem is far from resolved.