Judge Rules Against Patriot Act Provision

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: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.–Section
2709(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 a
Bureau field office designated by the Director” after
“Assistant Director”;
    (2) in paragraph (1)–
    (A) by striking “in a position not lower than Deputy
Assistant Director”; and
    (B) by striking “made that” and all that follows and
inserting the following: “made that the name, address,
length of service, and toll billing records sought are
relevant to an authorized investigation to protect against
international terrorism or clandestine intelligence
activities, provided that such an investigation of a United
States person is not conducted solely on the basis of

[[Page H7186]]

activities protected by the first amendment to the
Constitution of the United States; and”; and
    (3) in paragraph (2)–
    (A) by striking “in a position not lower than Deputy
Assistant Director”; and
    (B) by striking “made that” and all that follows and
inserting the following: “made that the information sought
is relevant to an authorized investigation to protect against
international terrorism or clandestine intelligence
activities, provided that such an investigation of a United
States person is not conducted solely upon the basis of
activities protected by the first amendment to the
Constitution of the United States.”.
    (b) Financial Records.–Section 1114(a)(5)(A) of the Right
to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(5)(A)) is
amended–
    (1) by inserting “in a position not lower than Deputy
Assistant Director at Bureau headquarters or a Special Agent
in Charge in a Bureau field office designated by the
Director” after “designee”; and
    (2) by striking “sought” and all that follows and
inserting “sought for foreign counter intelligence purposes
to protect against international terrorism or clandestine
intelligence activities, provided that such an investigation
of a United States person is not conducted solely upon the
basis of activities protected by the first amendment to the
Constitution of the United States.”.
    (c) Consumer Reports.–Section 624 of the Fair Credit
Reporting Act (15 U.S.C. 1681u) is amended–
    (1) in subsection (a)–
    (A) by inserting “in a position not lower than Deputy
Assistant Director at Bureau headquarters or a Special Agent
in Charge of a Bureau field office designated by the
Director” after “designee” the first place it appears; and
    (B) by striking “in writing that” and all that follows
through the end and inserting the following: “in writing,
that such information is sought for the conduct of an
authorized investigation to protect against international
terrorism or clandestine intelligence activities, provided
that such an investigation of a United States person is not
conducted solely upon the basis of activities protected by
the first amendment to the Constitution of the United
States.”;
    (2) in subsection (b)–
    (A) by inserting “in a position not lower than Deputy
Assistant Director at Bureau headquarters or a Special Agent
in Charge of a Bureau field office designated by the
Director” after “designee” the first place it appears; and
    (B) by striking “in writing that” and all that follows
through the end and inserting the following: “in writing
that such information is sought for the conduct of an
authorized investigation to protect against international
terrorism or clandestine intelligence activities, provided
that such an investigation of a United States person is not
conducted solely upon the basis of activities protected by
the first amendment to the Constitution of the United
States.”; and
    (3) in subsection (c)–
    (A) by inserting “in a position not lower than Deputy
Assistant Director at Bureau headquarters or a Special Agent
in Charge in a Bureau field office designated by the
Director” after “designee of the Director”; and
    (B) by striking “in camera that” and all that follows
through “States.” and inserting the following: “in camera
that the consumer report is sought for the conduct of an
authorized investigation to protect against international
terrorism or clandestine intelligence activities, provided
that such an investigation of a United States person is not
conducted solely upon the basis of activities protected by
the first amendment to the Constitution of the United
States.”.

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.