ACLU Returns to Court Over Patriot Act Provision

September 25, 2006 12:00 am

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In Papers Unsealed for First Time, “John Doe” Internet Service Provider Asks Court to Lift Gag, Citing Doubts on Law and Strain Over Deception of Friends and Family

NEW YORK — The American Civil Liberties Union, the New York Civil Liberties Union and an Internet Service Provider that is subject to an FBI gag order have filed new legal papers challenging the reauthorized Patriot Act’s National Security Letter (NSL) provision. Included in the documents is a previously unreleased declaration from the “John Doe” plaintiff detailing the personal and professional strain caused by the gag, which was imposed at the time Doe received an NSL.

“The Patriot Act dramatically expanded the FBI’s authority to monitor the communications and activities of people living in the United States,” said Jameel Jaffer, the ACLU lawyer who is lead counsel in the case. “But by permitting the FBI to silence those with direct experience of the new laws, Congress has denied the public any means of ensuring that the new surveillance authorities are being used appropriately and lawfully.”

The declaration released today is the first statement that John Doe has made since a lawsuit challenging the NSA was filed by the ACLU in April 2004. According to news reports, the government now issues 30,000 NSLs every year.

The legal documents were originally filed under seal because of the gag provision, and redacted versions were made available under procedures put in place by the court. In the declaration, Doe discusses being prevented from participating in the Patriot Act debate that raged across the nation in late 2005 and early 2006.

“Congress was specifically debating whether to amend the NSL statute – the statute I believed was so constitutionally deficient that I was willing to file a federal lawsuit challenging it – but I was prohibited from contacting members of Congress and advocating for changes to law,” said Doe.

“[T]he gag has compelled me to systematically deceive my friends, family, and girlfriend,” added Doe. “I did not like the feeling of being conscripted to be a secret informer for the government, especially because I have doubts about the legitimacy of the underlying investigation.”

Also included in the newly released legal papers is a declaration submitted by four librarians who are on the board of Library Connection, a library consortium in Connecticut. The consortium was served with an NSL and along with the ACLU challenged both the letter and the accompanying gag. After many months of litigation, the government abandoned its claim that lifting the gag order on the librarians would compromise national security.

In September 2004, Judge Victor Marrero of the Southern District of New York struck down the NSL provision as unconstitutional, saying that “democracy abhors undue secrecy.” In the landmark ruling, Judge Marrero held that indefinite gag orders imposed under the NSL law violate free speech rights protected by the First Amendment.

The government appealed Judge Marrero’s ruling and argument was heard before the appeals court in November 2005. Before the appeals court could rule, however, Congress amended the law in March. The case is now back before Judge Marrero. The ACLU argues that the gag provision of the revised NSL statute is still unconstitutional because it gives the FBI the authority to suppress speech without prior judicial review and because it requires courts to defer to the FBI’s opinion that secrecy is necessary in cases in which the gag is challenged.

“Time and time again we have seen the dangers in giving the government sweeping power to silence Americans,” said ACLU attorney Melissa Goodman. “Sadly, we have learned from experience that the government has, and will continue, to abuse its power to invoke secrecy to silence opposition, rather than protect national security.”

The legal documents in the Connecticut NSL case were recently unsealed by the government and the courts. The documents revealed that government attorneys had censored, among other non-sensitive information, whole newspaper articles and direct quotes from Supreme Court opinions that undercut the government’s arguments in the case.

The ACLU posted those documents online today in a feature highlighting the information the government previously claimed could not be made public because of national security reasons. That feature is online at:

Attorneys in the New York case are Jaffer, Goodman and Ann Beeson of the ACLU, and Arthur Eisenberg of the New York Civil Liberties Union.

The redacted briefs released today are online at:

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