Sept. 30, 2004 – In a stunning defeat to one of the Bush administration’s most championed and controversial "anti-terror" policies, a federal judge yesterday ruled that a provision of the USA PATRIOT Act allowing the FBI to conduct certain kinds of secret searches is unconstitutional, standing in violation of both the First and Fourth Amendments.
The case itself was cloaked in mystery as the American Civil Liberties Union had challenged the FBI’s use of secretive "national security letters" to obtain information from internet service providers and telecommunication companies. The letters (previous coverage), which are internally issued by the FBI without the consent of a court, are accompanied by a so-called "gag order" prohibiting the recipient from telling anyone about the letter.
US District Judge Victor Marreo ruled that the national security letters themselves violate the Constitutional protection against unreasonable searches and seizures while the gag order violates the right to free speech.
Marreo’s ruling only applies to the section of the law that had been challenged in this particular case: the FBI’s authority to issue national security letters to communications firms. Not included in the case was the FBI’s ability to issue national security letter powers to obtain financial and credit records. But, as ACLU attorney Jameel Jaffer told The NewStandard, Marreo’s ruling calls into question the legitimacy of the government’s other extensive powers concerning use of national security letters.
Because the letter does not inform the recipient of any process by which they may legally challenge the request for information, and the secrecy requirements effectively discourage recipients from consulting a lawyer, Marreo found the provision in violation of the Fourth Amendment.
The ACLU had been barred (previous coverage) by the gag order from revealing several details about the case, including the name of its client, the owner of an internet services company.
"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, ACLU Associate Legal Director, in a press statement. "As the judge recognized, the Patriot Act imposed a ‘categorical, perpetual and automatic’ gag on every person who received a National Security Letter, as well as their lawyers."
Judge Marreo’s 120-page ruling reveals a lengthy consideration of the specific constitutional issues surrounding the national security letters as well as the broader implications of weighing civil liberties against national security concerns.
"Cases engendering intense passions and urgencies to unencumber the Government, enabling it to move in secrecy to a given end with the most expedient dispatch and versatile means, often pose the gravest perils to personal liberties," Marreo wrote. "It is precisely times like these that demand heightened vigilance, especially by the judiciary, to ensure that, as a people and as a nation, we steer a principled course faithful and true to our still-honored founding values."
In striking down the provision, Marreo found that the method by which the FBI issues the national security letters, "invoking the authority of a certified ‘investigation to protect against international terrorism or clandestine intelligence activities,’ and phrased in tones sounding virtually as biblical commandment," elicits "passive obedience" from any letter recipient.
Because the letter does not inform the recipient of any process by which they may legally challenge the request for information, and the secrecy requirements effectively discourage recipients from consulting a lawyer, Marreo found the provision in violation of the Fourth Amendment.
Additionally, he ruled that the secrecy order, which "permanently prohibits the [recipient] from disclosing the [national security letter’s] existence to ‘any person,’ in every instance in which [it] is issued," violates the First Amendment.
"Democracy abhors undue secrecy, in recognition that public knowledge secures freedom," he wrote. "Under the mantle of secrecy, the self-preservation that ordinarily impels our government to censorship... may potentially be turned on ourselves as a weapon of self-destruction."
Though Marreo stayed his ruling for 90 days in order to give the government an opportunity to appeal, spokespeople for the ACLU were exuberant.
"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 Anthony Romero, executive director of the ACLU, in a press statement.
"Today’s ruling is a wholesale refutation of excessive government secrecy and unchecked executive power," added Jaffer. "As this decision suggests, certain provisions of the Patriot Act should never have been enacted in the first place."
The Justice Department has not yet commented publicly about the ruling except to say that it will likely appeal.
The ruling came even as Congress is considering the expansion of some government surveillance powers (previous coverage) by attaching various new provisions to the 9/11 Commission Implementation Bill. Jaffer said he expects yesterday’s ruling will certainly influence the national debate of those proposals and may serve as guidance to lawmakers as they consider their constitutionality.
See also the full text of Judge Marreo's ruling.
