GovernmentExecutive.com

Civil-liberties defenders will renew their court challenge to a special subpoena power built into anti-terrorism law that permits the FBI to scour library and Internet service provider files without search warrants.

The practice is allowed under "national security letters," a power recently reauthorized in the 2001 law known as the USA PATRIOT Act. The law bars recipients of the letters from disclosing the requests to anyone.

The American Civil Liberties Union and its New York chapter filed a new federal complaint last month, the groups said Monday. The legal papers originally were under seal because of the gag provision, but redacted versions were released with court approval.

The ACLU launched the case in April 2004 on behalf of an unnamed Internet service provider that received a subpoena. Several months later, a U.S. district court in New York ruled the power unconstitutional. The judge in the case, Victor Marrero, held that indefinite gag orders violate First Amendment free-speech rights, the ACLU said.

The government appealed the decision to the 2nd U.S. Circuit Court of Appeals, but before the court could rule, Congress amended the language on national security letters, the ACLU said. In May, the appeals court asked the district court to examine the amended language.

In its latest complaint, the ALCU argues that the gag provision gives the FBI authority to suppress speech without prior judicial review. The group also contends that the subpoena power is unconstitutional because while it permits courts to review the letters after they are issued, judges must defer to the FBI.

Jameel Jaffer, the ACLU's lead counsel in the case, called secretive government use of the letters "excessive and dangerous." According to news reports, investigators issue about 30,000 annually.

The letter in the pending case had a substantial effect on the plaintiff, who is still gagged and identified as "John Doe" in court paperwork, the ACLU said. Despite firsthand knowledge of the authority, the ISP could not participate in the heated PATRIOT Act debate that ensued nationwide in late 2005 and early 2006, the filing said.

In a similar case, the ACLU represented four Connecticut librarians who were part of a consortium that received a national security letter. The group challenged the FBI, and the government eventually withdrew its information demand and abandoned the gag order. The Supreme Court last week ordered that sealed court documents be made public.

George Christian, executive director of the Library Connection, hopes the ACLU's renewed fight results in a "definitive ruling" on "the limits of the extent to which [the letters] can be used to secure information from organizations that have collections of information."

Emily Sheketoff of the American Library Association said the ISP case "will add to the growing judicial agreement" that the "sweeping and perpetual gag order accompanying [such letters] is unconstitutional."

COMMENTS

• Sorry, not secure -- you still happen to live in a democracy. I work in a federal library and we are asked about by customers about records and what can be requested by other federal agencies. The FBI has screwed up enough. The ACLU plays devil's advocate because Congress doesn't have the balls to do its job. Post-Sept. 11? Do you really think anyone would remember Sept. 11 if it hadn't happened in New York? No one says a word about the attacks in Oklahoma City, Saudi Arabia (Khobar Towers), Nairobi, Madrid, London or Bombay. This is a new world? To whom? Most Americans were told in 2001 by the president to go shopping until they dropped and five years later now claims the nation is at war. Yeah, it's a new world. One that takes away more freedoms than it gives. Fearful of Big Brother GovExec.com reader Posted August 11, 2006 1:35 AM
• You don't give up liberty to save your life -- you give up your life to save liberty. The appointment of Porter Goss as head of the CIA was a disaster in terms of who's left to do a critical job. His role was merely to weed out those who were not in lock-step with this administration's desire to spy on its own citizens, enable them to torture, hold people without charges or trial, and commit other illegal acts. As long as we have an administration that places lackeys and cronies in charge of the agencies most vital to our security, who care more about stacking the deck with sycophants, instead of those who clearly have America's best interests at heart, we simply cannot trust those agencies. America has to decide whether we want to fight a real war on terror, which means catching Bin Laden and his ilk and destroying organizations like al Qaeda, instead of forcing democracy on other nations at the point of a gun. Considering the spin on intelligence that led us to invade and occupy Iraq, no one is going to trust the intelligence community to tell the truth until this administration is gone. GovExec.com reader Posted August 11, 2006 7:25 AM
• I wish the ACLU would get a life and get off the FBI's back. I would re-title your article "Friends of terrorists want to hog-tie the FBI.” Folks, we have to realize that this is post-Sept. 11. We are not safe anymore. Let the FBI, CIA and NSA do their jobs. Do not ask for an accounting except at the highest and most classified levels. If I know what the FBI is doing, so does the terrorist who wants to blow up my home, military installation, my gasoline company's refinery, etc. Let's handicap the enemy for a change. If we all vote, and insist upon our elected public servants doing their best with integrity, I have no fear of what the FBI is doing. If the FBI screws up -- and they have -- let the Senate in a "closed-door" session kick their butt. Not the ACLU, while telling half-truths the whole time, doing our enemies the most good. Fear terrorism, not the FBI. GovExec.com reader Posted August 9, 2006 3:54 PM