Analysis: Court nixes Patriot Act subpoena

By SHAUN WATERMAN, UPI Homeland and National Security Editor  |  Sept. 7, 2007 at 1:23 PM
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WASHINGTON, Sept. 7 (UPI) -- A federal judge in New York has ruled that a provision of the Patriot Act allowing the FBI to issue secret subpoenas to Internet service providers and other communications companies is unconstitutional and has ordered the bureau to cease using them.

The decision was welcomed by American Civil Liberties Union Executive Director Anthony Romero, who said he was "thrilled" at what he called "yet another setback for the Bush administration's strategy in the war on terror."

Unless overturned on appeal, the ruling will end one of the FBI's most widely used investigative tools -- and the one that is subject to the least stringent court oversight.

U.S. District Court Judge Victor Marrero did not find that the subpoenas, known as National Security Letters, were unconstitutional in themselves. But he ruled that provisions of the law that gagged those receiving them from disclosing the fact violated the First Amendment and the separation of powers. Since the gag-order provisions could not be meaningfully separated from authority to issue the letters, he struck down the whole law.

Attorney General Alberto Gonzales, FBI Director Robert Mueller and bureau General Counsel Valerie Caproni "are hereby enjoined from issuing National Security Letters," often referred to as NSLs, he ordered, staying the implementation of his ruling pending any appeal or for 90 days if there was no appeal.

Department of Justice Spokesman Dean Boyd would say only that government lawyers were "reviewing the ruling and considering our options."

A report by the Justice Department's inspector general earlier this year uncovered widespread serious abuse of NSLs, and his investigation -- described in some media reports as relating to possible criminal violations by FBI officials -- is continuing.

Thursday's decision is the second victory for the ACLU in a long-running challenge to the power to issue NSLs, launched in 2004 on behalf of a client who -- because of the gag order -- cannot be identified and is referred to in court papers as John Doe.

Marrero had previously ruled the letters were unconstitutional in 2004 -- a decision the Justice Department appealed. But last year, before the appeals court could reach a decision, Congress amended the power to issue NSLs when it re-authorized the Patriot Act.

The amended law gave companies served with NSLs -- which require them to turn over information about the electronic communications of their customers -- the right to challenge both the letters themselves and the gag orders associated with them in court.

But the standard the courts have to apply under the statute when deciding challenges to the gag orders is far too deferential, Marrero found.

The way the statute is worded "eviscerates any meaningful judicial review, as it clearly equates to an uncritical acceptance of the government's insistence of the need for secrecy," he wrote in his 106-page ruling. The law as written "effectively allows the government to determine the constitutionality of its own actions," a breach of the doctrine of the separation of powers.

Moreover, given the breadth and longevity of the gag orders, Marrero found, they fail to meet the requirement that restrictions on constitutional rights be drawn as narrowly as possible, and thus breach the First Amendment.

The ACLU had argued that its client was prevented by the gag order from taking part in the public discussion about the power to issue NSLs that was part of the debate about congressional renewal of the hurriedly passed suite of anti-terror laws called the Patriot Act.

“In light of the seriousness of the potential intrusion into the individual’s personal affairs and the significant possibility of a chilling effect on speech and association -- particularly of expression that is critical of the government or its policies -- a compelling need exists to ensure that the use of NSLs is subject to the safeguards of public accountability, checks and balances, and separation of powers that our Constitution prescribes,” Marrero wrote.

Finally, Marrero found that since "Congress intended the statute to function as a secret means of gathering information … Congress could not have intended … the provisions authorizing the FBI to issue NSLs … to operate absent the non-disclosure (or gag) provisions" and thus it was not possible for the court merely to strike down the gag provisions. Rather it had to rule that the law as a whole was unconstitutional.

The ruling was welcomed by Rep. Jerrold Nadler, D-N.Y., a longtime vocal critic of NSLs. In July, Nadler, with support from some GOP lawmakers, introduced a bill that would remove the gag-order provision of the law and provide what his office called in a statement "crucial checks" against the abuse of the letters.

“Today’s decision is a clear signal that Congress must enact changes to the overbroad and unconstitutional NSL authority,” Nadler said.

NSLs were first introduced in 1986, but the 2002 Patriot Act lowered the bar for their employment and expanded the kinds of companies that could be served with them -- resulting in an explosion in the numbers that were issued.

The Justice Department inspector general's report found that the FBI had issued 143,074 NSLs between 2003 and 2005, compared with just 8,500 in 2000.

The report also found that the FBI kept no centralized records of criminal proceedings launched as a result of information it received from NSLs. Field offices that responded to the inspector general's request for information reported a total of 153 criminal proceedings resulting from the 143,074 NSL requests -- including federal grand jury proceedings, search warrants, indictments and trials.

The inspector general was only able to confirm a single conviction for a terrorist-related offense on the basis of NSL information.

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