Provision in Patriot Act is rejected

WASHINGTON -- A federal judge in New York struck down one of the Bush administration's new surveillance powers yesterday, ruling that a USA Patriot Act provision that allowed the FBI to secretly obtain Internet and telephone records without a judge's warrant is unconstitutional.

Declaring that "democracy abhors undue secrecy," District Judge Victor Marrero ordered the Justice Department to stop issuing National Security Letters -- subpoenas to communications firms ordering them to turn over customer records that FBI agents deem relevant to a terrorism investigation.

National Security Letters, which have existed since 1986 but were significantly expanded by the Patriot Act, also place a permanent gag order on their recipients, barring them from telling the customer or anyone else about the event, even after the investigation is over.

The American Civil Liberties Union challenged the Patriot Act power on behalf of an unidentified New York-based Internet services provider that had been issued a National Security Letter. Told to turn over records to the FBI and to inform no one -- not even a lawyer -- a top official in the firm refused to comply and called the ACLU.

The unusual lawsuit that followed was for a time cloaked from public view, as the Justice Department sought to use the gag provision of the National Security Letter to keep the ACLU from revealing that the case existed. Several months ago, Marrero allowed the ACLU to announce the case, but the name of the Internet company remains sealed.

"After laboring under a gag provision for months, it is an enormous relief to be able to tell the world just how dangerous and extreme this Patriot Act power is," said Ann Beeson, associate legal director of the ACLU.

The ACLU argued that the National Security Letters system gave the FBI unchecked power to obtain private information without any form of judicial safeguards, violating the Fourth Amendment's guarantee against unreasonable search and seizure. It also argued that the permanent gag violates the First Amendment's guarantee of freedom of speech.

Marrero, a Clinton appointee, agreed, writing in a strongly worded 120-page decision that judicial oversight was necessary because the potential for abuse of the search and seizure power was too great to allow FBI agents to police themselves. He also wrote that the permanent gag order must be limited only to situations when an on-going investigation could still be harmed.

"Public knowledge ensures freedom," he wrote. "Under the mantle of secrecy, the self-preservation that ordinarily impels our government to censorship and secrecy may potentially be turned on ourselves as a weapon of self-destruction."

He also said that the letters may violate people's First Amendment-protected right to anonymous speech and freedom of association by enabling the government "to compile elaborate dossiers on Internet users" -- including Web pages visited, e-mail subject lines, and pseudonyms used for web logging -- without judicial review and oversight.

But noting that "several material issues in this case involve uncharted legal terrain," Marrero issued a 90-day stay of his judgment in order to give the Justice Department time to file an appeal.

The Justice Department issued no comment, but former Whitewater prosecutor Paul Rosenzweig, now at the conservative Heritage Foundation, said he expected that the ruling would be appealed and that parts of the opinion could be reversed.

"I'm skeptical of the reasoning, especially with respect to the gag order provision, and I would anticipate that the government would appeal with a good chance of success," he said.

He said that permanent gag orders are a routine part of many kinds of investigations, and that there is no punitive measure for failure to comply with a "mandatory" National Security Letter now. If a business did not want to turn over the records, the FBI would have to ask a judge for an enforceable warrant.

Marrero, however, wrote that in practice such letters, which do not tell recipients that they may contest the order, coerce people into obeying. He said the unnamed Internet service provider is the first recipient of a National Security Letter ever to defy the FBI, consult a lawyer, and challenge it.

Marrero's decision is the second time that a judge has ruled unconstitutional part of the Patriot Act, a package of prosecution and surveillance tools passed six weeks after the attacks of Sept. 11, 2001. The law has become a symbol to civil libertarians who say the Bush administration has gone too far in expanding security powers at the expense of privacy rights and individual freedom.

In January, a federal judge in Los Angeles struck down a section of the act that made it a crime to give "expert advice or assistance" to foreign terrorist organizations, saying the ban was so vague that Americans would be uncertain about whether they could be risking prosecution for casual discussions with a foreign organization that turns out to have a terrorism link.

The ACLU hailed yesterday's decision as a major event. "This is a landmark victory against the Ashcroft Justice Department's misguided attempt to intrude into the lives of innocent Americans in the name of national security," said the ACLU executive director, Anthony D. Romero, referring to Attorney General John D. Ashcroft.

Rosenzweig, however, suggested that the importance of the ruling would be exaggerated by opponents of the Bush administration. He noted that this is just one of many provisions in the Patriot Act, and that National Security Letters have been used by other administrations, including that of Bill Clinton. "Politically, it's going to be misperceived by those who have a willful interest in misperceiving it," he said.

David Rivkin, a former associate White House counsel in the first Bush administration who has often defended expansions of government powers in order to fight terrorism, said he was not sure this provision of the Patriot Act was necessary. He noted that FBI agents are able to get warrants from judges to accomplish the same goal of obtaining records necessary for an investigation without tipping off the target.

"My gut feeling is that this [ruling] is not necessarily a bad thing," Rivkin said. "We have to distinguish between legitimate needs to balance civil liberties and national security in a time of war, vs. administrative convenience -- 'I don't want to waste time going before a judge or magistrate.' That, to me, is not a good argument."

National Security Letters first came into law in 1986 as part of the Electronic Communications Privacy Act, which Congress passed to protect the customers of financial institutions from "unwarranted intrusions" into their records while at the same time permitting "legitimate law enforcement activity" when the FBI believed the customer was an agent of a foreign power.

The Patriot Act made it much easier to use the letters by removing any requirement that the target of the inquiries be connected to a foreign power and replacing it with a broad standard that the FBI must believe the person is "relevant" to investigations of terrorists or foreign spies.

In Congress, meanwhile, there are several proposals that would further expand law enforcement powers with provisions known informally as "Patriot Act II." The ACLU, which has opposed those provisions, moved to connect yesterday's ruling with that debate.

"Even now, some in Congress are trying to pass additional intrusive law enforcement powers," Romero said. "This decision should put a halt to those efforts."