"NEW YORK -- The American Civil Liberties Union and the New York Civil Liberties Union announced today that they have returned to court to challenge the constitutionality of the reauthorized Patriot Act's National Security Letter (NSL) provision. The provision permits the FBI to prohibit anyone who receives an NSL from disclosing that the FBI has sought or obtained information from them."
"The ACLU filed the case in April 2004 on behalf of an Internet Service Provider that had received an NSL and was prohibited from disclosing that the FBI had sought information from it. In September 2004, the district court struck down the NSL provision as unconstitutional, with Judge Victor Marrero writing that "democracy abhors undue secrecy." In his landmark ruling, Judge Marrero held that indefinite gag orders imposed under the NSL law violate free speech rights protected by the First Amendment.
The government appealed the decision to the Second Circuit Court of Appeals, and oral argument was heard in November 2005. Before the court issued a decision, however, Congress amended the NSL provision. In May 2006, the appeals court issued a ruling asking the district court to consider the constitutionality of the amended law. In a concurring opinion, Judge Richard Cardamone strongly criticized the government for continuing to argue that a permanent ban on speech would be permissible under the First Amendment.
"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," wrote Judge Cardamone. "Unending secrecy of actions taken by government officials may also serve as a cover for possible official misconduct and/or incompetence."
Judge Cardamone added that national security concerns "should be leavened with common sense so as not forever to trump the rights of the citizenry under the Constitution." "
IMO, both Judge Marrero and Cardamone are dead on the mark - NSL's are horribly prone and susceptible to abuse/mis-use - abuse/mis-use which can not be rectified due to the secrecy surrounding them - the un-Constitutionality of their use (as currently implemented) - period - is glaringly obvious. Pete