Judge Rules Against Patriot Act Provision

Fang-Face writes "In the continuing saga of USAPA, the law has suffered another setback. An article from Reuters,
and reprinted at CommonDreams.org, reports that a federal judge has struck down as unconstitutional the provision forbidding people from admitting they had been interrogated or interviewed under USAPA. This means that librarians can now put us signs saying that the FBI had indeed been in the library under S.215 -- should it ever happen or if it already has."

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There's An Echo In Here!

Echo echo echo echo

not exactly...

According to Orin Kerr it had nothing to do with the Patriot Act.

Re:not exactly...

Actually, the decision mentions the PA several times. Guess Mr. Kerr didn't read the decision.

Re:not exactly...

Do you have a source for this bold claim or am I just supposed to believe you? For the number of people that are supposedly librarians on this site so many people don't like to cite anything.
I see why people do it, it is fun to say things without backing them up.
Here let me try....

Actually, the sky is green.
Actually, grass is blue.
Actually, sporks are useful.
Actually, books should be burned.
Actually, the ALA is nonpartisan.
Actually, ......
Source: The Book of Bibliofuture (2004)

More informative reporting

There's an article with more information about the ruling
at First Amendment Center. That article says:

In a blow to the Justice Department's post-Sept. 11
powers, U.S. District Judge Victor Marrero, ruling
yesterday in Doe v. Ashcroft, struck down the provision
that let the FBI gather phone and Web customer records
but barred service providers from ever disclosing the
search took place.
[...]

The part of the law that was struck down, Section 505,
empowers the FBI to issue national security letters, or
NSLs. These NSLs -- which the FBI can issue without a
judge's approval in terrorism and espionage cases --
require telephone companies, ISPs, banks, credit bureaus
and other businesses to produce highly personal records
about their customers or subscribers.

Sure sounds like USAPA to me. Where does one get the idea that it's not about USAPA?

Re:not exactly...

I sort of figured librarians could find the decision and read it for themselves.

Re:not exactly...

Ok sparky, I can find the decision what I cannot find is references to the Patriot Act. You said, "decision mentions the PA several times" but you don't tell where it does that. So I have to read the whole opinion to discover you are wrong. If you had cited me to the section that MENTIONS THE PA SEVERAL TIMES I could just look at that section.
Also just because the case cites certain areas of the United States Code that are the same areas of the US Code where the Patriot Act is codified does not mean that it is actually the Patriot Act that was changed.

Re:not exactly...

The question is not whether the PA is mentioned in the ruling. Legal reasoning may entail the mention of many laws that are not being ruled on.

The question is whether or not the judge ruled on provisions of the PA. The ACLU, and much of the press, claims that provisions of the PA were struck down. The ruling itself, however, shows that the plaintiffs are challenging 18 U.S.C. § 2709 (the "national security letter" provision of the Electronic Communications Privacy Act). As Senator John Cornyn points out, the law that was struck down was authored by Patrick Leahy in the Senate in 1986.

Re:More informative reporting

Sure sounds like USAPA to me. Where does one get the idea that it's not about USAPA?

From reading the ruling. See my response to madcow above. Surely this isn't the first time the ACLU and the First Amendment Center have made mistakes.

Re:not exactly...

My name is not sparky. That aside, the decision can be found on Lexis. The pdf the other commenter mentions is not searchable for some reason.
That post stated "According to Orin Kerr [volokh.com] it had nothing to do with the Patriot Act." Well, it just seems to me if the judge in the decision says it does have to do with the PA, then it probably does.
Not to put us into Dan Rather territory, (where the documents in question actually are not the crux of the case), let's see what the case says.

I see six mentions of the phrase "Patriot Act". So can this mean that it has NOTHING to do with the PA?

Re:not exactly...

And as even the most casual search reveals, the PA amended 2709 substantially. If you want to argue that those amendments weren't relevant to the section being struck down, fine--but to argue that the judge didn't rule on something that was, in fact, part of the PA is disingenuous.

Re:More informative reporting

All right, I think I have a pretty fair idea of what is going on here with claims that the Marrero decision strikes down S.505 even though USAPA is not directly implicated in Doe and ACLU v: Ashcroft et al.

What appears to have happened is that USAPA capitalized on the provision in 18 U.S.C. S.2709 to make use of National Security Letters; NSL's were legislated into existence by this particular provision in 1986, and S.505 simply incorporated S.2709 the same way it incorporated a number of other provisions from various and sundry laws.

The ACLU decided to base it's challenge to S.505 on a challenge to the underlying provision, rather than challenging S.505 itself. One reasoning for such a move is as follows:

A striking down of S.505 would not necessarily have resulted in a striking down of the NSL gag order ab initio (from the beginning), and it could have left S.2709 in place, necessitating a separate action against that provision. By having S.2709 struck down, any subsequent legislations based on or incorporating that provision are necessarily rendered "fruits of a poison tree" -- equally unconstitutional and invalid.

So, where does the blame for all the subsequent confusion lie for the impact of the Marrero decision? On the ACLU and the Volohk Conspiracy. Neither body explored or stated the above rationale in the reports and examinations of the decision at their web sites. In as much as the challenge to 18 U.S.C. was a backdoor challenge to USAPA, the ACLU statement's about the decision dealt with USAPA instead of the 1986 law. Hence, it was reported as a direct action againt USAPA in the mainstream press, as can be seen in this Associated Press article at First Amendment Center. The reason for such reporting is explored at Volohk Conspiracy in an entry following up the debunking of the USAPA claims.

Okay, so: Who is right and who is wrong?

Nobody is wrong. Even though the challenge to S.505 was an indirect attack, relatively speaking: the results are exactly as described by the ACLU. And Orrin Kerr is also correct in his reporting that the decision has nothing to do with USAPA. It's just that both sides are slightly inaccurate in their assessments from not having explored or explained the issues deeply enough.

The press is at fault for not asking the right question of the ACLU: What's the connection between a law suit over 18 U.S.C. and USAPA?

Re:More informative reporting

Surely this isn't the first time the ACLU and the First Amendment Center have made mistakes.

Probably not, but at least their mistake isn't going to cost anybody their freedom or civil liberties, unlike most of Ashcroft's screw-ups, which have or would. Every attempt of his to get a conviction for terrorism so far has been a gross failure, and he's been holding Hamdi illegally for over two years. And still the Bush regime is looking to do more of the same.

Re:not exactly...

Title 18, §2709 has five sub-parts (a-e). The PA (see Sec. 505) made five changes to (b). The rest of §2709 was untouched by the PA (including sub-section (c), which was singled out by Judge Marrero). Two of the five changes involve striking the phrase "in a position not lower than Deputy Assistant Director". Another change involves inserting the phrase "at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director" after "Assistant Director" in §2709(b)(1). Thus, the upshot of these changes seems to be to permit the Special Agent in Charge of a Bureau field office the power to make these NSL requests. The remaining two changes modify §2709(b)(1) and (2), which paragraphs define the scope of what the FBI may request. I don't have access to the previous text of the statute, so I can't say how substantial or insubstantial the PA's alterations to these two paragraphs are. Perhaps they were substantial, and perhaps someone could demonstrate that.

but to argue that the judge didn't rule on something that was, in fact, part of the PA is disingenuous.

Wouldn't it be more accurate to say that the judge ruled on a statute that had been amended by the Patriot Act, than to say that he ruled on something that was part of the Patriot Act? It appears to me that his ruling was directed not at any changes the Patriot Act made to Title 18, §2709, but at features and provisions of §2709 that have been present in it all along. If that is true, then it is misleading (or, if intentional, disingenuous) to say that the judge ruled on part of or provisions of the Patriot Act. Saying that implies that the Patriot Act changes to §2709 were relevant to the judge's ruling.

I would like to note that the word 'disingenuous' connotes a calculating or intentional misleading. I am not sure what I did or said that seems intentionally misleading. I am quite fallible, and despite the fact that I generally take some care to state my points and arguments clearly, I do not always succeed. I assure you that my intention was not to mislead, spin, or distort.

I am something of a Patriot Act skeptic: I would be happy to see some of its provisions sunset. I see a great deal of uncritical thinking about the PA on both sides of the debate, and that bothers me. Some folks seem either to think that we will suffer another 9/11 if even a crumb of the PA is excised; others seem to think that if any part of the PA stands for another 24 hours, the jack-booted thugs will be breaking down their doors and hauling them off to the gulag. This is not directed at anyone in particular, but I would have hoped that librarians would have been able to muster a critical, nuanced discussion of this law without knee-jerk reactions to either side.

Re:not exactly...

"Disingenuous" was the wrong word, and I apologize for that.

I suspect that my feelings about PA aren't all that dissimilar from yours--some of its provisions should be allowed to sunset, and some of its provisions are probably worthwhile. I certainly agree that people on both sides of most issues (these days) seem not only to avoid critical thinking, but to despise those whose opinions aren't 100% black or 100% white. A shame. (And, of course, that continually gets me in trouble, since my stances on most issues are rarely 100% black or white. I've come under direct attack by people I agree with 90% as though I disagreed with them 100%. Nothing to do with PA, which I've generally stayed away from...) "Critical, nuanced discussion" is needed, but it's rare.

I almost didn't respond here, and probably should not have. This response is, to some extent, an echo of the response to the essay asserting that newspapers were carrying "incorrect" stories linking the decision to PA. The link is legitimate: even if the judge struck down 2709 for reasons having nothing to do with PA's changes (and, frankly, I'm not ready to read a 103-page PDF to check that out), the judge *did* strike down law that was part of PA (since amending existing law is much of what PA does).

The better argument--and one I would not have gotten involved in--is that PA's relevance to the decision is minor or even trivial: That's way beyond my abilities to comment on!

Interesting explanation, but ...

Your explanation of the case by means of an indirect attack on the PA is interesting, but I would like to see the evidence that this was indeed the strategy being pursued by the ACLU.

If I understand correctly, the Patriot Act simply extended the scope of NSLs to include investigations of terrorism, and granted the power to issue them to Special Agents in charge of local Bureau offices. The non-disclosure provision existed in the original law and was not modified or augmented by the PA. The real power that was subject to abuse (the NSLs and the non-disclosure of them) existed prior to the PA. It seems to me that to go after Sec. 505 of the PA by challenging Title 18, §2709 is a bit like pulling up a tree by its roots in order to get at one of its branches. As I see it, this whole business only makes sense if Title 18, §2709 was the target all along.

Note this paragraph from the First Amendment Center's article:

The part of the law that was struck down, Section 505, empowers the FBI to issue national security letters, or NSLs. These NSLs — which the FBI can issue without a judge’s approval in terrorism and espionage cases — require telephone companies, ISPs, banks, credit bureaus and other businesses to produce highly personal records about their customers or subscribers. [emphasis mine--ChuckB]

Wouldn't you say that that an intelligent, literate person reading this would get the impression that the power of NSLs originates with PA Sec. 505?

Re:not exactly...

I pulled up the decision and used search in my adobe broser for the word patriot and received no hits. Please just quote me one line from the decision that uses the term "patriot act". I was worried that I searched wrong so I just went back to the opinion and ran a keyword search for patriot and recieved no results. I need a cite because without I don't know what you are talking about. I also was unable to independantly confirm what you said myself.

Re:Interesting explanation, but ...

.....Wouldn't you say that that an intelligent, literate person
          reading this would get the impression that the power of NSLs
          originates with PA Sec. 505?I'm not sure yet. S.505 is appended below, however. At the very least it allows lower level agents to issue NSLs, than before USAPA.As to evidence supporting my contention of a backdoor challenge, I have none, but S.505 does not add anything new to title 18 U.S.C. beyond expanding its scope. It is clear to me at least that repealing 505 would simply leave 2709 in place. Declaring 2709 unconstitutional renders 505 moot from start to finish.I can't agree with your analogy about tearing up a tree by the roots to get one branch, by the way. It's more like cutting off a main branch to get a twig; 18 U.S.C. is still in place, just without that unconstitutional provision.SEC. 505. MISCELLANEOUS NATIONAL SECURITY AUTHORITIES.
    (a) Telephone Toll and Transactional Records.--Section2709(b) of title 18, United States Code, is amended--
    (1) in the matter preceding paragraph (1), by inserting"at Bureau headquarters or a Special Agent in Charge in aBureau field office designated by the Director" after"Assistant Director";
    (2) in paragraph (1)--
    (A) by striking "in a position not lower than DeputyAssistant Director"; and
    (B) by striking "made that" and all that follows andinserting the following: "made that the name, address,length of service, and toll billing records sought arerelevant to an authorized investigation to protect againstinternational terrorism or clandestine intelligenceactivities, provided that such an investigation of a UnitedStates person is not conducted solely on the basis of[[Page H7186]]activities protected by the first amendment to theConstitution of the United States; and"; and
    (3) in paragraph (2)--
    (A) by striking "in a position not lower than DeputyAssistant Director"; and
    (B) by striking "made that" and all that follows andinserting the following: "made that the information soughtis relevant to an authorized investigation to protect againstinternational terrorism or clandestine intelligenceactivities, provided that such an investigation of a UnitedStates person is not conducted solely upon the basis ofactivities protected by the first amendment to theConstitution of the United States.".
    (b) Financial Records.--Section 1114(a)(5)(A) of the Rightto Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(5)(A)) isamended--
    (1) by inserting "in a position not lower than DeputyAssistant Director at Bureau headquarters or a Special Agentin Charge in a Bureau field office designated by theDirector" after "designee"; and
    (2) by striking "sought" and all that follows andinserting "sought for foreign counter intelligence purposesto protect against international terrorism or clandestineintelligence activities, provided that such an investigationof a United States person is not conducted solely upon thebasis of activities protected by the first amendment to theConstitution of the United States.".
    (c) Consumer Reports.--Section 624 of the Fair CreditReporting Act (15 U.S.C. 1681u) is amended--
    (1) in subsection (a)--
    (A) by inserting "in a position not lower than DeputyAssistant Director at Bureau headquarters or a Special Agentin Charge of a Bureau field office designated by theDirector" after "designee" the first place it appears; and
    (B) by striking "in writing that" and all that followsthrough the end and inserting the following: "in writing,that such information is sought for the conduct of anauthorized investigation to protect against internationalterrorism or clandestine intelligence activities, providedthat such an investigation of a United States person is notconducted solely upon the basis of activities protected bythe first amendment to the Constitution of the UnitedStates.";
    (2) in subsection (b)--
    (A) by inserting "in a position not lower than DeputyAssistant Director at Bureau headquarters or a Special Agentin Charge of a Bureau field office designated by theDirector" after "designee" the first place it appears; and
    (B) by striking "in writing that" and all that followsthrough the end and inserting the following: "in writingthat such information is sought for the conduct of anauthorized investigation to protect against internationalterrorism or clandestine intelligence activities, providedthat such an investigation of a United States person is notconducted solely upon the basis of activities protected bythe first amendment to the Constitution of the UnitedStates."; and
    (3) in subsection (c)--
    (A) by inserting "in a position not lower than DeputyAssistant Director at Bureau headquarters or a Special Agentin Charge in a Bureau field office designated by theDirector" after "designee of the Director"; and
    (B) by striking "in camera that" and all that followsthrough "States." and inserting the following: "in camerathat the consumer report is sought for the conduct of anauthorized investigation to protect against internationalterrorism or clandestine intelligence activities, providedthat such an investigation of a United States person is notconducted solely upon the basis of activities protected bythe first amendment to the Constitution of the UnitedStates.".

Re:not exactly...

YO, DUDES!

If you searched the .PDF linked to through the ACLU site, that file has no text in it. It seems to be 122 pages of image files. I did a search for ASHCROFT and it returned no hits even though he's named as a defendant at the top of page one. Even simpler, activate the TEXT tool and try to block and paste. . . . won't work. If PATRIOT Act is mentioned, you can only find it by reading every page.

Re:not exactly...

see the cite I gave in my other post. You'll need Lexis access to get it.

Re:not exactly...

Sorry the lexis URL isn't persistent.

The cite should be:
04 Civ. 2614 or look it up as Doe vs. Ashcroft

or in lexis: LEXIS 19343

IANALL (I am not a law librarian), but seem to recall some university site had access to all case law on the web. Probably gone now.

Re:Interesting explanation, but ...

Wouldn't you say that that an intelligent, literate person reading this would get the impression that the power of NSLs originates with PA Sec. 505?

Yes, I would. And I'm reporting this as a case of misrepresentation at my site. Although I'll be qualifying it with a copy of my previous comment.

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