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  • Wednesday, November 17, 2004


    Trust us, we're the government

    Another beautiful day in Patriot Act Land! The following info isn't new. What is new is the lower courts finding some provisions of the Patriot Act unconstitutional. What? Say it isn't so! Our honest government, just trying to protect us from bad, bad terrorists, using unconstitutional laws? Well, they must have a good reason! I mean look at the comfortable executive jet we transport suspected terrorists in. We treat them so well! Well, aside from a few frat house pranks. The following is from Patriot Act Speed Bumps by Nat Hentoff:

    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." [my comment: So glad I've never said anything critical of the government! I wouldn't want to be mistaken for an enemy combatant or something.]

    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."

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