* John Doe, Inc. v. Mukasey (2nd Cir. Dec. 15, 2008)
A very interesting decision today by the 2nd Circuit in the long-running litigation involving the FBI’s ability to issue “national security letters” to communication service providers and to direct recipients of such letters not to go public with that information. The panel (Newman, Calabresi, and Sotomayor), in an opinion by Judge Newman, 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.
The opinion is posted here. By way of summary, I first outline the statutes in issue, and then provide a brief overview of the holding. Note that certain aspects of the opinion will be of particular interest to those of you who follow the state secrets privilege and other doctrinal areas in which judges confront the question of how to reconcile judicial review with executive expertise and authority in the area of national security.
18 USC 2709 authorizes FBI to issue “national security letters” requesting certain information, subject to a non-disclosure obligation:
That statute states that “A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession….”
Such a request must be supported by a certification from an appropriate FBI official to the effect that the “records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States.”
Critically, if the official “certifies that otherwise there may result a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person, no wire or electronic communications service provider, or officer, employee, or agent thereof, shall disclose to any person (other than those to whom such disclosure is necessary to comply with the request or an attorney to obtain legal advice or legal assistance with respect to the request) that the Federal Bureau of Investigation has sought or obtained access to information or records under this section.
18 USC 3511 creates a mechanism for challenging requests for information under 2709 and related statutes:
Section 3511(a) states that the “recipient of a request … may, in the United States district court for the district in which that person or entity does business or resides, petition for an order modifying or setting aside the request. The court may modify or set aside the request if compliance would be unreasonable, oppressive, or otherwise unlawful.”
Section 3511(b) similarly authorizes courts to “modify or set aside a nondisclosure requirement imposed in connection with such a request,” and it also specifies the substantive grounds for granting such relief.
Condensing things a bit, the statute permits the judge to modify or set aside the nondisclosure obligation only “if it finds that there is no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person.”
In making that determination, however, the judge is directed by the statute to give binding weight to the government’s position subject to a determination of bad faith: “If, at the time of the petition, the Attorney General, Deputy Attorney General, an Assistant Attorney General, or the Director of the Federal Bureau of Investigation, or in the case of a request by a department, agency, or instrumentality of the Federal Government other than the Department of Justice, the head or deputy head of such department, agency, or instrumentality, certifies that disclosure may endanger the national security of the United States or interfere with diplomatic relations, such certification shall be treated as conclusive unless the court finds that the certification was made in bad faith.
Also note that the statute permits ex parte presentations by the government: “In all proceedings under this section, the court shall, upon request of the government, review ex parte and in camera any government submission or portions thereof, which may include classified information.”
Today’s opinion included the following holdings:
* The “no reason” test permits judges to review the reasonableness of the government’s claim that disclosure would risk one of the enumerated harms (slip at 30)
* The burden is on the government to show that this test has been satisfied, not on the petitioner to disprove it (slip at 31)
* The non-disclosure requirement presents a First Amendment issue, prompting strict scrutiny (the panel disagreed as to whether this might be a scenario in which something weaker than the usual strict scrutiny might apply, but concluded that the point was immaterial here) (slip at 36)
* There is no question that the government has a compelling interest in maintaining secrecy in such cases, as a general proposition; the question instead is the tailoring of the non-disclosure petition process (slip at 37)
* Issue 1: The status quo places the burden on the recipient of a letter to initiate litigation to challenge a non-disclosure order. Is that too restrictive?
Yes (38-42). Though the First Amendment does not require the government to actually initiate such review itself in every one of the tens of thousands of NSLs issued each year, it does require compliance with what the panel describes as a “reciprocal notice” procedure:
“The Government could inform each NSL recipient that it should give the Government prompt notice, perhaps within ten days, in the event that the recipient wishes to contest the nondisclosure requirement. Upon receipt of such notice, the Government could be accorded a limited time, perhaps 30 days, to initiate a judicial review proceeding to maintain the nondisclosure requirement, and the proceeding would have to be concluded within a prescribed time, perhaps 60 days. In accordance with the first and second Freedman safeguards, the NSL could inform the recipient that the nondisclosure requirement would remain in effect during the entire interval of the recipient’s decision whether to contest the nondisclosure requirement, the Government’s prompt application to a court, and the court’s prompt adjudication on the merits.” (39)
Does that mean the court is construing the statute to contain such a procedural requirement? No, not really. The court seems to be saying that the statute as written is unconstitutional, but that the government can “cure” the defect through voluntary action short of a legislative fix:
“We deem it beyond the authority of a court to “interpret” or “revise” the NSL statutes to create the constitutionally required obligation of the Government to initiate judicial review of a nondisclosure requirement. However, the Government might be able to assume such an obligation without additional legislation.” (49)
* Issue 2: The status quo makes the court accept the government’s assertion that disclosure poses an unacceptable risk of harm, except upon a determination that the assertion is made in bad faith. Is that constitutional?
No. This is a complex and important question.
(a) As an initial matter, the panel holds that the government must offer more than a conclusory assertion that disclosure would risk such a harm. “In showing why disclosure would risk an enumerated harm, the Government must at least indicate the nature of the apprehended harm and provide a court with some basis to assure itself (based on in camera presentations where appropriate) that the link between disclosure and risk of harm is substantial. As the Government acknowledges, “Nothing in [subs]ection 3511(b) would require a district court to confine judicial review to the FBI’s necessarily unelaborated public statement about the need for nondisclosure. The provisions in [subs]ections 3511(d) and (e) for ex parte and in camera review provide a ready mechanism for the FBI to provide a more complete explanation of its reasoning, and the court is free to elicit such an explanation as part of the review process.” (45, 48-49)
(b) What about the prerogatives of the executive branch in making such determinations in the national security setting? Note that this is a *very* familiar question from the parallel context of state secrets privilege doctrine. The panel’s statement on this point is typical of what court’s say in that setting, suggesting that judges simultaneously exercise independence and avoid intrusion on executive prerogatives. “We have every confidence that district judges can discharge their review responsibility with faithfulness to First Amendment considerations and without intruding on the prerogative of the Executive Branch to exercise its judgment on matters of national security. Such a judgment is not to be second-guessed, but a court must receive some indication that the judgment has been soundly reached.” (46)
(c) What about the district court’s determination that judges must remain able to balance the risk to national security against their sense of the importance of the petitioner’s First Amendment interests? On this point, the panel held for the government. It wrote that there is no need for such additional balancing under the review system it envisions, stating that “[a] demonstration of a reasonable likelihood of potential harm, related to international terrorism or clandestine intelligence activities, will virtually always outweigh the First Amendment interest in speaking about such a limited and particularized occurrence as the receipt of an NSL and will suffice to maintain the secrecy of the fact of such receipt.” (46-47)
* Issue 3: Must the entire statute be struck because of these flaws, or can they be severed?
Contrary to the district court’s view, they may be severed. The panel therefore reinstates the government’s capacity to issue NSLs under this framework, subject to the rulings noted above. (53)