Despite Court Warnings, Feds Seek More Secrecy

POST BY Kary L. Moss Executive Director
October 04, 2004

Bush administration tries to increase government powers that erode liberties, even as a judge finds parts of the Patriot Act require greater public oversight.

The American Civil Liberties Union is a nonpartisan organization. We have defended Rush Limbaugh and Oliver North. We have defended the rights of Michigan citizens to put up Bush/Cheney lawn signs as well as Kerry/Edwards lawn signs. It is the principle that matters.

At no other time in my adult life can I recall when principle has mattered more. The next president may very well nominate up to three Supreme Court justices. And at no other time can I remember when the courts have been as important as they are now.

On Sept. 29, the ACLU scored a victory when a federal court struck down a provision in the Patriot Act that gave the Federal Bureau of Investigation virtually unchecked authority to issue "National Security Letters" to obtain sensitive customer records from Internet Service Providers and other businesses without judicial oversight and without any suspicion of wrongdoing. The security letters could be used to obtain information about entire groups of people who communicate online, including groups like the National Association for the Advancement of Colored People or Heritage Foundation.

National Security Letters are a type of administrative subpoena that allows federal agents to demand records from businesses and prohibits the companies from revealing that the demands were made. Before this court ruling, the FBI simply had to certify, without court review, that the records are "relevant" to an intelligence or terrorism investigation. The federal judge found that the Patriot Act expanded the FBI's powers to allow them to obtain lists of people who have e-mail accounts with given political organizations.

The Department of Justice moved quickly to minimize the impact of the landmark ruling. In an e-mail message sent to Senate leaders and their staffers, a Senate Republican Policy Committee analyst claimed that news reports that the ruling had invalidated a Patriot Action provision were "false" because the court also struck down the underlying 1986 law that the Patriot Act amended.

In his ruling, federal Judge Victor Marrero recognized that the Patriot Act represented a "major revision" to the security letter power because it replaced the prior requirement of individualized suspicion with a "broad standard of relevance to investigations of terrorism or clandestine intelligence activities."

Notably, Judge Marrero explicitly rejected the government's increasing move toward secret and coercive investigatory tactics in the post-September 11 environment.

"It is precisely times like these that demand heightened vigilance, especially by the judiciary," he wrote, "to ensure that, as a people and as a nation, we steer a principled course faithful and true."

Ironically, the court case had its own drama with the Department of Justice trying to censor what the public could know about the litigation. The existence of the lawsuit was gagged for nearly a month, and the ACLU had to get the department's approval to disclose that the case had even been filed.

The ACLU then had to fight over every line in our legal papers, ironically including a passage - which the Department of Justice censored with a black marker - from a 1972 decision by the U.S. Supreme Court: "The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect 'domestic security.' Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent."

We have had to fight with the Department of Justice over the attorney general's desire to close deportation hearings to the press and public. We have had to fight with the department over its increased use of "secret" courts - courts enacted under a law called the Foreign Intelligence Surveillance Act - in which the hearings are not open to anyone except for law enforcement. We have had to fight with the department for the names of those held in detention centers during the September 11 investigations.

Most strikingly, at the end of the last term, the Supreme Court, in two cases, rejected the Bush administration's arguments that its actions in the war on terrorism are beyond the rule of law, ruling that detainees and "enemy combatants" held at the Guantanamo Bay naval base in Cuba can challenge their detention in court.

The decision in these cases was 6-3.

The September 11 commission hearings and reports have now resulted in the introduction of several bills in Congress, one of which, pending in the House, would deny immigrants certain court appeals, including banning court reviews of claims that an illegal immigrant would be tortured upon return to his or her home country. Should the bill pass, needless to say, there will be a challenge to its constitutionality in the courts.

All of this points to the importance of our courts in preserving civil liberties during times of national crisis. It is up to the courts to determine the appropriate balance between national security and the civil liberties. One thing we can be sure of is that this Department of Justice is no friend of liberty or freedom. Secrecy is the name of the game.

Americans do not need to lose our freedom to be safe. Rather, we cannot allow the promise of safety to become the excuse for stripping our democracy of all the checks and balances that guarantee our freedom.

Special to the Detroit News by Kary Moss, ACLU of Michigan Executive Director

Kary Moss is executive director of the American Civil Liberties Union of Michigan. Send letters to the Editorial Page, 615 W. Lafayette, Detroit, MI 48226, (313) 222-6417 or letters@detnews.com

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