As First Patriot Act 'Sunsets' Hearings Convene, Justice Department Muddies Debate With Disingenuous Claim

April 5, 2005 12:00 am

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WASHINGTON – As the Senate gaveled in the first hearing on the expiring portions of the Patriot Act today, the American Civil Liberties Union accused the Justice Department of falsely arguing that a judge did not hold a section of the Patriot Act unconstitutional last year.

“The Justice Department’s word games are only meant to distract the American people from the fact that the Patriot Act made it easier for the government to spy on innocent people without court review,” said Greg Nojeim, Associate Director of the Washington Legislative Office. “This is nothing less than a continued misinformation campaign from the Justice Department designed to confuse the American public and its representatives in Congress.”

At issue is an argument popular with those who oppose fixing the Patriot Act to bring it in line with the Constitution. The argument holds that a 2004 court decision that overturned part of the Patriot Act did not actually do so. Such a claim has no basis in law or fact, the ACLU said.

For instance, in a recent op-ed in the Washington Times, Senator John Cornyn (R-TX) said any claim that the decision was a significant loss for then-Attorney General John Ashcroft or struck down a provision of the Patriot Act is an attack against “the wrong person and the wrong law.” Not only is Cornyn incorrect, the ACLU said, but his op-ed was designed to mislead readers into believing that the court did not strike down a provision of the Patriot Act as unconstitutional.

In September 2004, in a case called Doe v. Ashcroft, the United States District Court for the Southern District of New York struck down the law, which gives the FBI the ability to obtain sensitive customer records from e-mail or other electronic service providers using what are known as “national security letters,” or NSLs. That decision has been stayed pending appeal.

The NSL statute — section 2709 of Title 18 — effectively allows the FBI to demand records without approval by a judge. These NSLs cannot be challenged in court and recipients are gagged forever from disclosing the request.

The original NSL statute was enacted by the Electronic Communications Privacy Act of 1986, but Section 505 of the USA Patriot Act dramatically expanded the law’s reach. Prior to the Patriot Act, the FBI had to have specific information that the target of the NSL was a spy or an agent of a foreign power. That requirement was eliminated by the Patriot Act. As a result of the Patriot Act amendment, the FBI can issue NSLs to obtain information about anyone, so long as it certifies to itself that the records sought are merely “relevant” to a terrorism or intelligence investigation.

In finding the statute unconstitutional under the Fourth Amendment, Judge Victor Marrero referred specifically to the Patriot Act amendments in Section 505. He noted as an example of the kind of abuse now authorized by the statute that it could be used to issue a NSL to obtain the name of a person who has posted a blog critical of the government, or to obtain a list of the people who have e-mail accounts with a given political organization.

The government could not have obtained this information with an NSL prior to the Patriot Act amendment in Section 505, unless the blogger or the people with such accounts were thought to be foreign powers or agents of foreign powers, the ACLU said. The court also cited Patriot Act Section 505 as a reason it struck down the statute on First Amendment grounds. The court determined that the previous tie to foreign powers – eliminated by Section 505 – “limits the potential abuse” of the statute and distinguishes it from other intelligence search provisions that retain the requirement and include a statutory gag provision.

Furthermore, when a statute is deemed unconstitutional in its entirety – as the NSL provision was in this case – all amendments to the statute are necessarily struck down as well.

“The Justice Department argument is a hollow exercise in semantics,” said ACLU Associate Legal Director Ann Beeson, lead counsel in the case at issue. “The Justice Department should stop trying to cover up concerns with the Patriot Act and work with Congress to fix this legislation.”

The court’s decision and other legal documents in the Doe case is online at

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