Silent Suits

Challenging secrecy...in secret.

Almost a year ago, the satirical newspaper The Onion ran the headline "Revised Patriot Act Will Make It Illegal to Read Patriot Act." That restriction is still confined to the world of parody—but just barely.

In April the American Civil Liberties Union (ACLU) revealed that it had filed a lawsuit in the U.S. District Court for the Southern District of New York challenging the FBI's authority to issue national security letters, extrajudicial demands for information whose scope was expanded by the PATRIOT Act. But the announcement came weeks after the complaint was filed, because the case itself was subject to the sort of gag order that prevents those served with national security letters from talking about them.

Now the information sluice gates are open—sort of. Following negotiations with the government, the ACLU has released a highly redacted version of its complaint in the case of [CENSORED] and ACLU v. Ashcroft. According to lead counsel Jameel Jaffer, the group cannot even officially confirm that it has a client in the case, although the legible portions of the complaint appear to refer to an Internet access provider. Even the briefing schedule in the case was at one point deemed too sensitive to be posted, and it was temporarily pulled from the ACLU Web site.

It's difficult to make out the full substance of the suit through all the black markings, but the ACLU complains that the gag provisions of the law authorizing national security letters are vague and overbroad, and that the letters themselves violate the First, Fourth, and Fifth amendments. As Jaffer observes—and this case illustrates—a strict reading of the gag requirement would make it difficult, if not impossible, for parties served with national security letters to seek counsel to challenge them in court, let alone recruit scholars to file amicus curiae briefs.

Noting that part of the ACLU's mission is to alert the public to questionable uses of state power, Jaffer says, "Secrecy breeds abuse, and the secrecy is in many ways an abuse in itself. How many of the abuses at Abu Ghraib would have happened under more transparent conditions?"