By Scripps Howard News Service
April 30, 2004

To no one's surprise, the American Civil Liberties Union  filed suit challenging the constitutionality of parts of  the USA Patriot Act, the sweeping security law passed in  the immediate aftermath of 9/11.

To what should be everyone's shock, the mere fact of the lawsuit was kept secret under provisions of the act.

"It is remarkable that a gag provision in the Patriot Act kept the public in the dark about the mere fact that a constitutional challenge had been filed in court," said the ACLU. Remarkable and also scary.

The Bush administration insists that the Patriot Act is vital to fighting terrorism, but, aside from Attorney General John Ashcroft's sheltered and uninformative tour before screened audiences, refuses to say precisely how. One of the disturbing aspects of this administration is that it seems to believe that how it manages the people's business is none of the people's business.

The lawsuit was sealed for over three weeks while the ACLU and the government haggled over what the ACLU could and could not say publicly about its lawsuit. The lawsuit was filed in New York on April 6 and a heavily edited version was released on April 28.

One of the secrets is the other plaintiff in the case, identified only as an "Internet access business." The FBI, through a National Security Letter, apparently was seeking from an Internet service provider a client's billing information, online purchases and e-mail addresses.

National Security Letters are a kind of subpoena that doesn't require a judge's approval, only the FBI's say-so, to covertly obtain personal information from banks, telephone companies, Internet providers, libraries, credit bureaus, etc. Recipients of NSLs are barred by a gag order from disclosing that they have received one. The Patriot Act greatly eased the restrictions on NSLs so that the FBI could act quickly in national security cases.

But the ACLU contends, "As a result of the Patriot Act, the FBI may now use NSLs to obtain sensitive information about innocent individuals who have no connection to espionage or terrorism." No one wants to tip off the target of a valid investigation, but given the past misuse of the FBI for political purposes this is not an unrealistic fear.

The ACLU argues that the expanded National Security Letter power is unconstitutional because the recipient has no way of challenging the validity of the NSL and the government doesn't have to justify not informing the target of an NSL. The ACLU also believes the gag order is unconstitutional and it does seem to raise issues about freedom of speech.

The Bush administration is demanding that the Patriot Act not only be renewed but expanded when it expires next year. Congress rushed initial passage of the Patriot Act; it should be in no rush to renew it. This law demands a hard second look.

Copyright Family Guardian Fellowship

Last revision: August 14, 2009 08:07 AM
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