Secret ACLU, NYCLU Lawsuit Tests Constitutionality of Patriot Act

While Congress remains reluctant to extend provisions of the Patriot Act set to expire in 2005, the American Civil Liberties Union (ACLU) and New York Civil Liberties Union revealed that they secretly filed a lawsuit last month challenging the constitutionality of a section of the Patriot Act that gives the government the authority to use "National Security Letters" to subpoena business records without judicial oversight. This latest turn follows a familiar pattern in the Kafkaesque debate about the Patriot Act. Gag orders on people that the federal government targets under some sections of the Patriot Act prevent anyone from learning about the circumstances surrounding the government's use of those very same Patriot Act powers. For example, when the FBI uses its powers under section 505 of the Patriot Act, the part of the law targeted in the recently filed lawsuit, to demand that an Internet Service Provider or other business turn over email traffic and other customer information, the recipient of the letter cannot discuss the letter with anyone. "It isn't even clear that a recipient can speak to a lawyer," Ann Beeson, an ACLU lawyer, told the New York Times. The secrecy surrounding this case has created obstacles for the public interest plaintiffs. The groups kept the lawsuit a secret while they negotiated with the government what they could say publicly about the secret case. Once they came to agreement on those terms, the ACLU issued a press release that, in part, described the schedule of the case. The government claimed the release violated the judge's secrecy order. The ACLU removed two paragraphs from the version of the press release on its website while attempting to resolve the matter. The judge refused to lift the seal but outlined a process for redacting information from court documents before releasing them to the public. The judge kept under seal information relating to terrorism investigations that may come to light during the case. Meanwhile, key Republicans are balking at extending provisions of the Patriot Act that expire in 2005. The White House has pressed Congress to extend the sunsetting provisions this year, but the current chairperson of the House Judiciary Committee, Rep. Jim Sensenbrenner (R-WI), has expressed no interest in doing so. In the Senate, a key player is on the Judiciary Committee, Sen. Arlen Specter (R-PA), a co-sponsor of legislation by Sen. Larry Craig (R-ID) to strengthen controls on the government's Patriot Act powers. National Security Letters subpoenas can be served on any individual or business in connection with counterintelligence and terrorism investigations. Questions about the impact of the Patriot Act on civil liberties have persisted in part because of the secrecy surrounding how the government uses its Patriot Act powers, which undermines open, democratic debate about the Act's most controversial provisions.
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