Cuffing Bush and the FBI

A serious setback to the Patriot Act, despite the victorious Bush's unstinting support

Bush's re-election ensures that he and John Ashcroft's designated successor, Alberto Gonzales, will press Congress hard to retain the Patriot Act in its entirety, and enact a Patriot Act II that will further disable the Constitution.

There are two primary roadblocks to further assaults on our liberties. Despite continued Republican control of Congress, there is still a firm alliance there between civil-liberties Democrats and conservative Republican libertarians, especially in the Senate. That coalition will continue to oppose Bush's determination to fight the Patriot Act's "sunset clause," which permits reconsideration of parts of the act by December 2005.

During the presidential campaign, Bush repeatedly urged Congress to ignore the "sunset clause" and enshrine the Patriot Act permanently. The Bill of Rights Defense Committee resolutions in nearly 400 cities and towns, and four state legislatures, will keep the pressure on Congress to resist this expansion of executive powers.

ACLU attorney Jameel Jaffer: Teaching constitutional law to John Ashcroft
photo: Shiho Fukada
ACLU attorney Jameel Jaffer: Teaching constitutional law to John Ashcroft

Our second hope is the awakening lower federal courts, which are now challenging sections of the Patriot Act. But even if these judicial curbs on Bush and Ashcroft grow, any such victories can be overturned by the Supreme Court, to which Bush is going to make at least one appointment, and possibly more, by the end of his second term.

These are obviously perilous times for constitutional freedoms. But attention should be paid to the strongest blow yet against Bush and the Patriot Act—the September 28, 2004, decision by Federal District Judge Victor Marrero in New York in John Doe, American Civil Liberties Union v. John Ashcroft and FBI Director Robert Mueller.

Judge Marrero struck down as unconstitutional on Fourth and First Amendment grounds section 505 of the Patriot Act that had greatly increased the government's capacity to secretly get large amounts of personal information by sending out National Security Letters, which do not require a judge's approval.

During one of the presidential debates, Bush flatly told an untruth—as Ashcroft often has on this subject—when he said that any action taken under the Patriot Act requires a judicial order. No judge is involved in National Security Letters under the Patriot Act.

The ACLU, which brought this lawsuit, explains that before the Patriot Act, a 1986 law allowed the FBI to issue these National Security Letters "only where it had reason to believe that the subject of the letter was a foreign agent." Section 505 of the Patriot Act, however, removed the individualized suspicion requirement and authorizes the FBI to use National Security Letters to obtain information about groups or individuals not suspected of any wrongdoing.

"The FBI need only certify—without court review—that the records are 'relevant' to an intelligence or terrorism investigation." (Emphasis added.)

Who decides what "relevant" means? The FBI, all by itself. That's why its headquarters are still named after J. Edgar Hoover. You can trust the FBI.

Jameel Jaffer, a lawyer for the ACLU involved in this case, told me both why the National Security Letters are so dangerous, and what the effect of Judge Marrero's ruling will be—if it is upheld by the appellate courts all the way up.

"The provision we challenged [that the judge struck down]," says Jaffer, "allows the FBI to issue NSLs against 'wire or electronic service communication providers.' Telephone companies and Internet service providers [are included.]" As Judge Marrero noted, the FBI could also use an NSL "to discern the identity of someone whose anonymous web log, or 'blog,' is critical of the Government."

Jaffer adds that by requiring information from telephone companies and Internet providers, "The FBI could . . . effectively obtain a political organization's membership list, like the NAACP or the ACLU, [and could] obtain the names of people with whom a journalist has communicated over the Internet."

Furthermore—dig this—every National Security Letter comes with a gag order. The recipients are forbidden to tell any other person that the FBI has demanded this information, and can't even tell their lawyers that the long hand of the government is scooping up their data.

As Judge Marrero said in his decision, this omnivorous invasion of privacy is so broad that it mandates this gag rule "in every case, to every person, in perpetuity, with no vehicle for the ban to ever be lifted from the recipient."

The scope of this court's setback to Big Brothers Bush, Mueller, and Ashcroft is underlined by Jaffer's point that if Judge Marrero's decision is upheld, it could "apply with equal force" to other dimensions of National Security Letters that allow the FBI to get personal information from financial institutions, including credit card companies and banks.

Furthermore, the much publicized and dreaded section 215 of the Patriot Act, which gives the FBI authority to search your personal data from your visits to libraries, bookstores, and other sources of information, could also be overturned.

In striking down the noxious National Security Letters section 505 of the Patriot Act, Marrero wrote: "Under the mantle of secrecy, the self-preservation that ordinarily impels our government to censorship and secrecy may potentially be turned on ourselves as a weapon of self-destruction . . . "

Marrero then emphasized a truth that ought to be kept in mind as George W. Bush, having won the popular vote, unlike in 2000, uses national security even more forcefully against the Constitution. Judge Marrero warns:

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