2nd Circuit judges appear wary of Patriot Act secrecy rules

NEW YORK - A federal appeals panel yesterday suggested it might require the government to permit entities ranging from major corporations to libraries to challenge FBI demands for records under the Patriot Act.

Judges on a three-judge panel of the 2nd U.S. Circuit Court of Appeals commented as they questioned lawyers on both sides in two cases from Connecticut and New York in which lower court judges ruled that the government’s secrecy requirements went too far.

Judges Barrington D. Parker Jr. and Richard Cardamone

both indicated they were troubled by the seemingly endless secrecy requirements and that the court might spell out what legal avenues those subjected to the probes can follow. However, they reserved judgment yesterday.

There is "very good reason not to allow public disclosure while a counterintelligence investigation is going on," Douglas N. Letter, a Justice Department attorney, argued before the 2nd Circuit.

There are no criminal or civil penalties in place for violating the gag-order requirements, though the government could obtain a court order to enforce them, he said.

The American Civil Liberties Union argued the government was oppressive in its approach.

The 2nd Circuit was hearing appeals by the government of rulings in separate cases from New York and Connecticut.

In Connecticut, a federal judge had ruled that librarians were unfairly prevented from joining a debate over how the Patriot Act should be rewritten because of a gag order issued in an FBI records request about library patrons.

Prosecutors said the gag order only prevented the release of the client’s identity, not the client’s ability to speak about the Patriot Act.

In the New York case, a federal judge had ruled that national security letters violated the Constitution because they amounted to unreasonable search and seizure.

The FBI can issue national security letters without a judge’s approval in terrorism and espionage cases. They require telephone companies, Internet service providers, banks, credit bureaus and other businesses to produce highly personal records about their customers or subscribers.

People who receive the letters are prohibited by law from disclosing to anyone that they got them.

The judge also ruled the nondisclosure requirement violated free speech.

The Patriot Act, passed shortly after the Sept. 11, 2001, attacks, allowed expanded surveillance of terror suspects, increased use of material-witness warrants to hold suspects incommunicado and permitted secret proceedings in immigration cases.

Previous
Patriot Act appeal fails at Supreme Court
Justice Ginsburg, denying emergency appeal by libraries, says 2nd Circuit must consider constitutional questions before gag order is lifted. 10.07.05

Related

Federal court strikes down part of Patriot Act
Judge says provision allowing secret searches of records from ISPs, other businesses violates First Amendment because it bars companies from ever disclosing search took place. 09.30.04

Senate OKs Patriot Act reauthorization
Lawmakers approve four-year expiration dates on library, wiretap provisions, setting up fall confrontation with House, which wants 10-year sunsets. 08.01.05

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Judges Question Patriot Act in Library and Internet Case

By ALISON LEIGH COWAN
Published: November 3, 2005
A panel of federal judges in Manhattan raised questions yesterday about secrecy provisions in the nation’s antiterrorist act, expressing concerns that the act indefinitely silences those swept up in investigations.

The judges of the United States Court of Appeals for the Second Circuit heard arguments in two cases involving a Connecticut library group and a New York Internet service provider, who were asked to provide information about their patrons in relation to government counterterrorism investigations.

The judges did not immediately rule on the matter. But by their questions, the judges seemed skeptical of arguments by a Justice Department lawyer who said it was within constitutional limits for the government to prevent recipients of such requests from ever speaking about them.

"The troubling aspect from my standpoint is it’s without limit," Senior Judge Richard J. Cardamone said while questioning the government’s lead lawyer, Douglas Letter, about the nondisclosure provision in what is known as the USA Patriot Act. "There’s no end to how long you have to keep this secret."

Plaintiffs in the New York and Connecticut cases received what are known as national security letters from the F.B.I., asking them to turn over information about their patrons in the course of federal counterterrorism investigations. The letters routinely bar recipients from publicly disclosing anything about the requests.

The New York plaintiff is a small Internet service provider whose name has been concealed in court filings to avoid running afoul of the Patriot Act.

In September 2004, Judge Victor Marrero of United States District Court in Manhattan sided with the Internet service provider in finding that the expanded powers that the federal government received to issue national security letters, through the Patriot Act, violated the First and Fourth Amendments. His decision has been stayed pending the government’s appeal.

The federal government has also sought to suppress the identity of the Connecticut plaintiff. But a variety of court records, such as an Aug. 16 law memorandum that was incompletely censored by the government and a court-operated Web site that temporarily failed to remove the plaintiff’s name from the filings, show it to be Library Connection, a consortium in Windsor, Conn., that serves as the back office for several libraries.

Though the Connecticut plaintiff is also challenging the constitutionality of the national security letter that it received, it has pressed for immediate relief to allow its officers and directors to testify in Washington on whether Congress should reauthorize the Patriot Act.

On Sept. 9, Judge Janet C. Hall of United States District Court in Bridgeport ruled that the provision barring public disclosure violated the Connecticut group’s right to free speech. Judge Hall also said that the federal government had failed to meet the burden of proof needed to argue that national security interests warranted overriding those constitutional rights. But her decision was stayed by the appeals court, pending its own review of the case.

In urging the appeals panel to overturn the two lower court decisions, Mr. Letter said that the New York judge "had it exactly backwards" and that the Connecticut judge had "turned herself into a national security expert."

Ann Beeson, one of the lawyers for the American Civil Liberties Union, which is representing both recipients of the national security letters, emphasized that her clients were not seeking to identify the targets of the national security letters and agreed that national security might warrant secrecy in some cases. But, she said, "there was no conceivable justification" for continuing the order of secrecy in the Connecticut case, citing reasons known to the court that she said she was unable to publicly state without violating the Patriot Act.

Representatives of the American Library Association, which submitted an amicus curiae, explained that Ms. Beeson was unable to argue aloud that the ban on disclosure is obsolete given that the plaintiff’s identity has been made public by The New York Times in articles based on court records that directly and indirectly pointed to Library Connection as the plaintiff.

Both inside and outside of court, Ms. Beeson suggested it was unfair to perpetuate a situation in which Kevin J. O’Connor, the United States attorney for Connecticut, can speak out, as he does at one event after another in defense of the Patriot Act, when her Connecticut client cannot do so without fear of prosecution.

Mr. Letter, however, told the panel of judges that the civil liberties union was overstating the sweep of the ban and the risk of enforcement if one defied it.

"I’m baffled why the argument is that they can’t participate in the debate," he said. "The only thing they can’t do is say that they were the recipient of a national security letter."

Ms. Beeson countered that "a sign advocating peace in the gulf on the lawn of a general" would have a far different impact from "the same sign in a 10-year-old child’s bedroom."

– http://www.nytimes.com/2005/11/03/n...