ACLU isn't completely gone?
Patriot Act hit again in court
Judge rejects revised provision allowing FBI, without warrant, to seize phone, Internet records.
By Greg Gordon - McClatchy Washington Bureau
Published 12:00 am PDT Friday, September 7, 2007
Story appeared in MAIN NEWS section, Page A1
WASHINGTON -- For the second time, a federal judge on Thursday struck down a Patriot Act provision that authorizes the FBI to demand, without court warrants, that telephone companies, financial institutions and Internet providers secretly turn over records for use in national security investigations.
The ruling by U.S. District Judge Victor Marrero of New York, in a suit filed by the American Civil Liberties Union, marked another in a series of court actions nullifying key elements of the Bush administration's counterterrorism strategy.
The secrecy provisions are "the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values," Marrero wrote. His strongly worded, 103-page opinion amounted to a rebuke of both the administration and Congress, which had revised the act in 2005 to take into account an earlier ruling by the judge on the same topic.
The FBI has said that national security letters, which are similar to subpoenas but require no court review, are an "indispensable investigative tool" in counterterrorism and counterintelligence investigations.
The bureau uses the letters to obtain electronic records from phone companies, banks, credit card companies, Internet providers and libraries, saying such records frequently provide a basis for applications to a secret national security court for warrants authorizing secret searches or wiretaps.
The letters, however, have sparked a growing controversy.
In a lengthy report and in congressional testimony last spring, Justice Department Inspector General Glenn Fine reported he had found widespread and troubling abuses in the bureau's issuance of 142,000 of the letters from 2003 to 2005, estimating 3,000 of the requests were probably illegal or improper.
The watchdog office also found that the FBI's record-keeping system for the letters was in such disarray that reports to Congress vastly understated the number of letters the bureau was issuing.
Under the Patriot Act, the bureau or one of its field offices needs only declare that the information sought is relevant to a national security investigation in order to issue such a letter.
In 2004, Marrero struck down an earlier version of the law that authorized the bureau to send the letters, ruling that it violated the First and Fourth amendments to the Constitution because it gave recipients no legal recourse and allowed the FBI to forbid recipients from disclosing their existence.
Congress tried to address those concerns by revising the provision when it amended the Patriot Act in 2005. But the ACLU took issue with the new version of the gag order as well and returned to court in a suit on behalf of an unidentified Internet service provider.
Under the new provision, the recipient is barred from disclosing that the FBI "has sought or obtained access to information or records" if the FBI director or his agent certifies that the disclosure could create "a danger" to national security or to someone's safety, or could interfere with an investigation or foreign relations.
The law was also changed to give recipients a limited right to challenge the gag orders in court but required courts to accept as "conclusive" the testimony of FBI officials if they said secrecy was needed for national security reasons.
Marrero on Thursday said those standards were "overly deferential" to the government, and forestalled "meaningful judicial review."
He ruled that the gag orders are an unconstitutional infringement on the recipients' First Amendment rights. The judge wrote that in light of the letters' demands, potential privacy intrusions and "the significant possibility of a chilling effect on speech and association -- particularly of expression that is critical of the governor or its policies -- a compelling need exists to ensure that the use of National Security Letters is subject to the safeguards of public accountability," including court review.
Marrero stayed his ruling for 90 days to give the administration time to appeal to a higher court or let Congress pass legislation ameliorating the problem.
The Justice Department is expected to vigorously challenge the decision, but department spokesman Dean Boyd said only, "We are reviewing the decision and weighing our options at this point."
Rep. Jerrold Nadler, D-N.Y., the chairman of the House Judiciary subcommittee that deals with civil rights issues, called the ruling "an affirmation of the rule of law, of checks and balances, and the separation of powers."
FBI Director Robert Mueller took responsibility for abuses in the national security letters program last spring, saying he'd failed to institute internal controls over their issuance.
In July, Mueller and Attorney General Alberto Gonzales sent a letter to Vice President Dick Cheney, in his capacity as president of the Senate, laying out a series of measures to address concerns about the letters.
These included the creation of an Oversight Section in the Justice Department's National Security Division, which will regularly review the conduct of FBI national security investigations, and the proposed creation of an FBI Office of Integrity and Compliance.