Gagged ‘letters’ are ruled illegal

UNITED PRESS INTERNATIONAL

A federal judge in New York has ruled that a provision of the Patriot Act allowing the FBI to issue secret subpoenas to Internet service providers and other communications companies is unconstitutional, and has ordered that the agency to cease using them.

The decision was welcomed by American Civil Liberties Union Executive Director Anthony D. Romero, who said he was “thrilled” about what he called “yet another setback for the Bush administration’s strategy in the war on terror.”

U.S. District Court Judge Victor Marrero did not find that the subpoenas, known as National Security Letters, were unconstitutional in themselves.

But the judge ruled that provisions of the law that gagged those receiving them from disclosing the fact violated the First Amendment and the separation of powers — and that the gag order provisions could not be meaningfully separated from the rest of the law.

Attorney General Alberto R. Gonzales, FBI Director Robert S. Mueller III and FBI General Counsel Valerie E. Caproni “are hereby enjoined from issuing National Security Letters,” the judge ordered, staying the implementation of his ruling pending any appeal or for 90 days if there was no appeal.

Justice Department spokesman Dean Boyd said government lawyers were “reviewing the ruling and considering our options.”

The decision is the second in a long-running challenge to the subpoena power, begun in 2004 by the ACLU on behalf of a client who — because of the gag order — cannot be identified and is referred to in court papers as “John Doe.”

In 2004, Judge Marrero ruled that the letters, often referred to as NSLs, were unconstitutional — a decision the Justice Department appealed.

But last year, before the appeals court could reach a decision, Congress amended the power to issue NSLs when it re-authorized the Patriot Act.

The amended law gave companies served with NSLs — which require them to turn over information about the electronic communications of their customers — the right to challenge the letters and the gag orders associated with them in court.

But the standard the courts have to apply under the statute when deciding challenges to the gag orders is far too deferential, Judge Marrero found.

The way that the statute is worded “eviscerates any meaningful judicial review, as it clearly equates to an uncritical acceptance of the government’s insistence of the need for secrecy,” the judge wrote in his 106-page ruling.

The law as written “effectively allows the government to determine the constitutionality of its own actions,” a breach of the doctrine of the separation of powers.