- The Washington Times - Thursday, September 30, 2004

Attorney General John Ashcroft said yesterday that the government would appeal a New York court ruling declaring unconstitutional its power to issue secret subpoenas of Internet and telephone companies.

Speaking to reporters in the Netherlands, where he is meeting with European officials, Mr. Ashcroft said the power to issue national security letters — as the secret subpoenas are known — was “completely consistent with the United States Constitution.”

Also yesterday, Sen. John Cornyn, Texas Republican, accused the American Civil Liberties Union and the news media of misrepresenting the ruling as a blow to the Patriot Act.

“The power to issue these [subpoenas] goes back to 1986,” he said. “It has nothing to do with the Patriot Act. This is another attempt by the ACLU and those who seek partisan gain from civil liberties issues to scare the American people.”

On Wednesday, U.S. District Judge Victor Marrero ruled that the power to issue the letters, which require electronic communications providers to hand over their customer records and bar them from ever disclosing that the search took place, violated the First and Fourth Amendments.

The letters can be used to find the senders of anonymous e-mail messages, or the hosts of chat rooms, for example, and are issued without judicial oversight. The bar on disclosing these secret subpoenas is so broad that it could even apply to discussions with a lawyer.

The power to issue the letters dates back to the 1986 Electronic Communications Privacy Act, written by Sen. Patrick J. Leahy, Vermont Democrat. Under that law, national security letters could be used only against those suspected of being agents of a foreign power.

The Patriot Act expanded the power in 2001 so that it could be used to obtain any information deemed relevant to counterintelligence or terrorism investigations.

But the expansion of the potential targets of the letters in the Patriot Act “has nothing to do with the procedural issues on which the court ruled,” said Cornyn spokesman Don Stewart.

Mr. Cornyn himself, saying “Anyone can make a mistake,” noted the way news media organizations had picked up on the ACLU press release claiming the ruling struck down a Patriot Act provision.

“It’s amazing to me how newspapers like the New York Times can just uncritically report these kind of scare tactics,” he said.

The ACLU attorney who litigated the case on behalf of an Internet service provider acknowledged that the two issues on which the court ruled — the ban on disclosure and the absence of judicial oversight — predated the Patriot Act.

“The provisions that we challenged and that the court objected to were in the statute before the Patriot Act was passed,” ACLU counsel Jameel Jaffer said.

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