Attorney General John Ashcroft has said the government is likely to appeal a federal court ruling striking down the part of the Patriot Act that gave the FBI power to conduct secret and unchallengeable searches of Internet and telephone records.
“Without knowing the specifics, I wouldn’t be able to assure you that the case would be appealed, but it is almost a certainty that it would be appealed,” the attorney general told the press at a Dutch seaside resort, where Ashcroft was meeting with European Union justice and interior ministers September 30.
“We believe the act to be completely consistent with the United States Constitution,” Ashcroft said.
That isn’t exactly what U.S. District Judge Victor Marrero said in ruling that section of the controversial Patriot Act group of laws unconstitutional on grounds that it equaled a prior restraint on freedom of speech. The law allowed such secret FBI searches – obtainable without court warrants – by way of “national security letters” indicating the reason for wanting the information tied to terrorism investigations. It gave, critics argued, what amounted to the search subject having no right to know s/he or his/her records were being searched, and prohibited Internet service providers from discussing any “national security letter” demanding such customer records, even with their attorneys.
“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 wrote. “At that point, secrecy's protective shield may serve not as much to secure a safe country as simply to save face."
The September 29 ruling drew immediate praise from the Electronic Frontier Foundation, which had filed an amicus brief in support of the American Civil Liberties Union suit against that portion of the Patriot Act. “Today's ruling is an important victory for the Bill of Rights, and a critical step toward reining in the unconstitutional reach of the Patriot Act," said EFF staff attorney Kurt Opsahl after the ruling. "The Court recognized that judicial oversight and the freedom to discuss our government's activities both online and offline are fundamental safeguards to civil liberties, and should not be thrown aside.”
The Cato Institute, a Washington libertarian think tank, also objected to the law. “Instead of enacting a law that says whenever an FBI agent wants to demand something from someone, he can do so as long as he is following leads in a terrorism investigation, the Patriot Act accomplishes the same end indirectly,” said Timothy Lynch, director of Cato’s Project on Criminal Justice, when the law was enacted. “The FBI can now use boilerplate forms and submit them to federal magistrates, who 'shall' approve the applications. The judicial check is not there. The judiciary cannot scrutinize the foundation for the Justice Department applications."
