September 07, 2007
Will White House Appeal Judge's Patriot Act Ruling?
Andrew Cohen of the Washington Post's Bench Conference blog thinks so. But a DOJ appeal may actually not be worth it.
U.S. District Court Judge Victor Marrero's ruling [PDF] yesterday strikes a provision in the revised 2005 Patriot Act that allows the government to compel data and records from businesses. The FBI was permitted to forbid those businesses -- Internet service providers, phone companies, etc. -- to object to, or talk about in any way, orders to surrender records. (Judicial review was permitted, but Marrero concludes that the bar for reversal was set unreasonably high.)
That meant those companies had no way of alerting customers that their records were being seized by the feds, nor could they resist handing the records over in the name of protecting customers' privacy. ISPs in particular have vocally objected to this provision; the one that brought the lawsuit is listed as "John Doe."
Marrero found that the gag order violated the businesses' First Amendment rights. That's a fairly easy legislative fix. Congress agrees with DOJ that in some cases, particularly those related to terrorism investigations, it may be necessary to demand records from vendors and order them to keep quiet about it. But lawmakers could rewrite the provision and expand judicial review over this process, placing additional burden on the FBI to show a compelling reason why a gag order is necessary. It's hard to think of a good reason why DOJ would object to that.
Marrero objects to the ease with which the FBI issues National Security Letters, noting that he found it "most troubling" that the feds were gathering "statements critical of the way that the government uses NSLs and expressing concern that free expression and association might be chilled." This is a pretty consistent pattern in the administration's prosecution of the war on terror. There are generally sound arguments for the counterterrorism devices at work since the 9/11 attacks, but then the government shoots itself in the foot when those devices are misused.
The ruling draws heavily on DOJ Inspector General Glenn Fine's March report [PDF] that showed sloppy and callous use of the NSLs within the FBI. Both Director Robert Mueller and Alberto Gonzales were outraged and ordered safeguards. Marrero's ruling requires that Congress go further and bring NSL requests under judicial review. The White House has already agreed to restore judicial oversight for FISA surveillance requests, so it's hard to see why they wouldn't agree to do the same for NSLs.
It's important to keep in mind that Marrero did not rule NSLs themselves unconstitutional. He struck the provision related to them because of the First Amendment violations and the lack of judicial oversight. NSLs predate the Bush administration by more than a decade. They're an issue now because their use has exploded in number since 9/11. The Boston Globe reports that DOJ hasn't yet decided whether it will appeal Marrero's ruling. Also, keep an eye out for what lawmakers say their intentions are with regard to fixing the provision.
Posted at 11:59 AM
Posted to:
Alberto Gonzales, Bush Administration, Constitution, Robert Mueller, Terrorism
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