GovernmentExecutive.com

A pair of watchdog groups urged a federal appeals court Wednesday to strike down a section of a 22-year-old surveillance law which, under a PATRIOT Act expansion, lets the FBI obtain private records about citizens' communications without court approval as long as the data could advance a terrorism or espionage investigation.

A judge deemed the national security letter statute unconstitutional, but the Bush administration appealed the ruling. In a friend-of-the-court brief before the 2nd U.S. Circuit Court of Appeals, the Electronic Frontier Foundation and the National Security Archive argued that secrecy surrounding the administrative subpoenas undermines government accountability and enables misuse of authority.

The filing comes a week after the Justice Department's release of a report intended to update a 2007 probe that revealed flawed and possibly illegal uses of the security letters by the FBI. Justice Department Inspector General Glenn Fine's latest review flagged such violations as issuances of letters without authorization, improper requests and unauthorized collection of records due to FBI errors or mistakes made by letter recipients. Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., said legislative action may be needed.

House Judiciary Committee Chairman John Conyers, D-Mich., said he will "continue to hold the administration accountable for its actions" at an April FBI oversight hearing.

Two House bills and one Senate measure introduced last year proposed changes in how security letters are handled. House Homeland Security Intelligence Subcommittee Chairwoman Jane Harman, D-Calif., sponsored one; House Judiciary Constitution, Civil Rights and Civil Liberties Subcommittee Chairman Jerrold Nadler, D-N.Y. sponsored another. Sen. Russell Feingold, D-Wis., sponsored the Senate bill. Nadler's subcommittee is planning a hearing on the issue, likely in April.

The FBI has discretion to place recipients of NSLs under indefinite gag orders. In a 2004 opinion rejecting the mandate, U.S. District Judge Victor Marrero wrote that "democracy abhors undue secrecy" and "[a]n unlimited government warrant to conceal, effectively a form of secrecy per se, has no place in our open society."

The case was brought by the American Civil Liberties Union and an anonymous Internet service provider in April 2004 and the FBI insists the gag order should remain even though the agency dropped its demand for records more than a year ago, ACLU attorney Jameel Jaffer said Thursday. The government's reply brief is due next month and oral argument is expected in April or May.

COMMENTS

• The first rule of violating the constitution is: NEVER talk about violating the constitution! The second rule of violating the constitution is: NEVER TALK about violating the constitution! Nate Posted March 28, 2008 3:45 PM
• Funny how time changes things. Approximately 35 years ago another Pacaderm POUTS was brought down for doing the same things … illegal wiretaps and surveillance. He will forever be remembered by the common moniker of “Tricky Dick”. Skeeter, nice to hear you defend something we do; you seem to find fault with everything else. But I must ask, why do you defend this breach of our Constitutional rights, since it IS one of your despised civil servants performing these acts? Hmmm… Maybe that is an assumption on my part; perhaps it is one of your beloved “intelligence” contractors that is peeking in our bedrooms. Janus, why do you rant on Constitutionality when addressing the expenses/cost of the government, but fail to defend our protections and rights when discussing wiretaps, surveillance, suspension of legal representation, or swift trial by our peers? Is that all you care about? Are you just that cheap? All the free time, always worried about money; I’m figuring you must be retired and on a fix income. Perhaps you lost one too many arguments with the SS department? “The FBI has discretion to place recipients of NSLs under indefinite gag orders.”; well, so much for freedom of speech. Judge Marrero, you are “The Man”! Tip off Posted March 24, 2008 3:12 PM
• Why don't we just do away with national security and let anyone come and go as they please that way we can become a real 3rd world country. I bet all our international friends will donate to us dan ketter Posted March 21, 2008 11:52 AM