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Ashcroft: U.S. will appeal terror-law ruling

By SHAUN WATERMAN, UPI Homeland and National Security Editor   |   Sept. 30, 2004 at 7:11 PM   |   Comments

WASHINGTON, Sept. 30 (UPI) -- Attorney General John Ashcroft said Thursday the government would appeal a New York court ruling declaring unconstitutional its power to issue secret subpoenas to Internet and telephone companies, as a GOP senator charged the judgment was being deliberately misrepresented for political ends.

Speaking to reporters in the Netherlands, where he is meeting with European officials, Ashcroft said the power to issue national-security letters -- as the secret subpoenas are known -- was "completely consistent with the United States Constitution."

Also Thursday, Sen. John Cornyn, R-Texas, accused the American Civil Liberties Union and the media of misrepresenting the ruling as a blow to the USA Patriot Act.

"The power to issue these (subpoenas) goes back to 1986," he told United Press International. "It has nothing to do with the Patriot Act.

"This is another attempt by the ACLU and those who seek partisan gain from civil-liberties issues to scare the American people."

U.S. District Judge Victor Marrero ruled Wednesday that the power to issue the letters, which require Internet service providers to hand over their customer records and bar them from ever disclosing the search took place, violated the First and Fourth Amendments.

The letters can be used to find the senders of anonymous e-mail messages or the hosts of chat rooms, for example, and are issued without judicial oversight.

The bar on disclosing these secret subpoenas is so broad that it could even apply to discussions with a lawyer, effectively barring the recipient from seeking legal advice or from having any recourse to challenge the subpoena.

The power to issue national-security letters dates back to the 1986 Electronic Communications Privacy Act, authored by Sen. Patrick Leahy, D-Vt. Under that law, the letters could be used only against those suspected of being agents of a foreign power.

In 2001 the package of anti-terrorism laws called the Patriot Act amended the 1986 act, expanding the power to issue such letters so that it could be used to obtain any information deemed relevant to counter-intelligence or terrorism investigations.

Since the power was expanded, federal authorities have issued national-security letters to an unknown number of Internet service providers. The companies were required to provide customers' names, addresses, credit-card numbers and details about their Internet use.

But the expansion of the potential targets of the letters in the Patriot Act "has nothing to do with the procedural issues on which the court ruled," said Cornyn spokesman Don Stewart.

Cornyn himself -- saying, "Anyone can make a mistake" -- noted the way media organizations had picked up on the ACLU press release claiming the ruling struck down a Patriot Act provision.

"It's amazing to me," he told UPI, "how newspapers like the New York Times can just uncritically report these kind of scare tactics."

A brief survey of Wednesday's coverage of the case showed that almost every news organization -- including UPI -- erroneously described the power that was struck down as a provision of the Patriot Act.

"The ACLU use this kind of coverage in their fundraising appeals," said Cornyn.

The ACLU attorney who litigated their case on behalf of an Internet service provider acknowledged that the two issues on which the court ruled -- the ban on disclosure and the absence of judicial oversight -- predated the Patriot Act.

"The provisions that we challenged and that the court objected to were in the statute before the Patriot Act was passed," ACLU counsel Jameel Jaffer told UPI. "We could have raised the same objections before the power was expanded."

But he added that it was accurate to say that a provision of the Patriot Act had been struck down, because the ruling that the underlying power was unconstitutional voided the original law.

"There's nothing left to be amended," he said.

He said it was unclear how the court might have ruled if the law had not been expanded but said the much broader use of the powers had influenced the court's reasoning.

"It's clearly in the back of the court's mind that this now can be used against everyone," he said, "The judge does mention the (2001) amendments on a couple of occasions" in the ruling.

"Clearly this was an attempt to politicize this issue," said Stewart of the ACLU's press release, "and embarrass what the ACLU calls 'the Ashcroft Justice Department' rather than trying to have a reasonable debate about the constitutionality of this law."

"I don't quite get their point," Jaffer said of Cornyn and Stewart's comments. "In effect they're saying, 'We didn't pass an unconstitutional law, we just passed a law that made an unconstitutional law even worse.'"

Cornyn noted that the erroneous coverage was apparently first spotted by a George Washington University law professor named Orin Kerr, who wrote about it on a web site call "The Volokh Conspiracy."

"It's another victory for the bloggers," said Cornyn.

--

(Please send comments to nationaldesk@upi.com.)

© 2004 United Press International, Inc. All Rights Reserved. Any reproduction, republication, redistribution and/or modification of any UPI content is expressly prohibited without UPI's prior written consent.
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