The Washington PostDemocracy Dies in Darkness

Can an American be investigated for terrorism merely for expressing support for it? The government isn’t saying.

The U.S. Courthouse in Washington, where the secret Foreign Intelligence Surveillance Court resides, is seen in a parking garage safety mirror at left. (AP Photo/Cliff Owen)

The nation’s secretive surveillance court recently released a redacted opinion that has raised concerns about the scope of First Amendment protections in terrorism investigations.

The Foreign Intelligence Surveillance Court released the February 2013 order written by Judge John D. Bates, then the court’s chief judge, in response to a public access motion filed last year with the court by the American Civil Liberties Union.

The six-page order, issued pursuant to Section 215 of The Patriot Act, is highly redacted but appears to suggest, analysts say, that an American can be investigated as part of a terrorism investigation when he has done nothing more than exercise his First Amendment right of expression — as long as that speech shows sympathy for the terrorist group's illegal activities.

Justice Department officials say they disagree with that reading, but decline to explain why it's wrong.

“The opinion contains classified information which supports the judge’s finding,” Justice spokesman Marc Raimondi said, “but has been redacted from the declassified version to protect intelligence sources and methods.”

Bates approved the FBI’s request for an order requiring a provider, such as a phone company or e-mail service, to turn over records belonging to an American, saying that “the application demonstrates reasonable grounds to believe that the underlying investigation (of the U.S. person) is ‘not conducted solely upon the basis of activities protected by the First Amendment,’" as required by Section 215.

This much is clear: Nothing the U.S. person said or did fell outside the zone of the First Amendment. He didn’t incite an act of imminent violence or conspire with the terrorist group or give them money or material support.

“In particular,” Bates said, [the American’s] "statement that [redacted] seems to fall well short of the sort of incitement to imminent violence or ‘true threat’ that would take it outside the protection of the First Amendment.”

The traditional understanding of the statute is that it does not permit an American to be investigated if all his speech or activities are protected by the First Amendment.

But what’s new is Bates is saying that Section 215 allows consideration of the activities of others in approving an investigation of a U.S. person.

And of particular concern to privacy advocates is that Bates appears to be saying that if those activities are illegal, then investigating the American does not violate his First Amendment rights.

The statute, Bates said, “does not restrict the court to considering only the activities of the subject of the investigation… Rather,” it’s permitted to look “the character … of the ‘activities’ that are the ‘basis’ of the investigation,” he said.

“So people who are entirely innocent can be investigated under this statute,” said Jennifer Granick, director of Civil Liberties at the Stanford Center for Internet and Society, who wrote a blog post about the issue. “I didn’t know that before. There’s nothing under any of the redactions that could change that conclusion.”

One former national security official who reviewed the redacted order said “the natural implication of this reading … is that there must be some very close relationship between this individual and the illegitimate activities that are the subject of the investigation.”

So what other activities were considered in approving the order and what was their link, if any, to the U.S. person whose records were obtained?

Those details were redacted from the order, which was released on Aug. 28.

In the unredacted portion, Bates stated that the statute “permits consideration of the related conduct of [redacted] in determining whether the First Amendment requirement is satisfied.” The redaction presumably relates to the terrorist group.

Bates also said that the government is investigating the American “not only on the basis of his own personal words and conduct (which, as noted, suggest sympathy toward, if not support of, international terrorism,) but also on the basis of the admitted or suspected [redacted].”

That suggests that all the American has done is express support for the terrorist group’s activities, and that because those activities are illegal —not protected under the First Amendment -- the court order may be approved, said ACLU staff attorney Patrick Toomey.

The order "leaves very little to the protection written into the statute for First Amendment activities,” Toomey said, “especially because these investigations are so large and sweeping in scope that the government can easily point to the conduct of other people, even if the person who is the subject of the investigation has done nothing more than express sympathy for the organization’s activities.”

The underlying question is: Does Section 215 permit the government to obtain an American's records by pointing to his speech or conduct, so long as that speech or conduct shows sympathy for non-protected activities that are the subject of a wider investigation?

DOJ declined to give a direct answer to that question.

"It's a hypothetical," department spokesman Wyn Hornbuckle said.

“As we have said, activities, including speech, protected by the First Amendment may not be the sole basis for an order under Section 215 for an investigation of a U.S. person,” he said. “Beyond that we can’t comment on the specifics of any investigations.”