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An investigative tool the Federal Bureau of Investigation claims is critical in its pursuit of potential terrorists came under attack at the 2nd U.S. Circuit Court of Appeals as the government Wednesday appealed two adverse decisions. Lawyers with the American Civil Liberties Union said that a federal statute that allows the FBI to send National Security Letters to Internet service providers asking for records of computer users was unconstitutional because it places those providers, which range from large corporations to small-town libraries, under a permanent gag order. While National Security Letters have been used in one form or another since 1986, ACLU lawyer Jameel Jaffer said their current incarnation under the USA Patriot Act is unconstitutional because the FBI no longer needs individualized suspicion to ask for the records and because “the statute is coercive.” But Douglas N. Letter of the U.S. Department of Justice said the government had already answered some of the ACLU’s concerns by agreeing that recipients of a National Security Letter can consult with counsel and have access to judicial review. And Letter told a panel of Judges Barrington D. Parker, Richard J. Cardamone and Joseph McLaughlin that the dispute over the letters (or NSLs) was much ado about nothing because there are no civil or criminal penalties for violating the gag order. The issues came before the circuit in two cases. The first was in a decision by Southern District of New York Judge Victor Marrero in 2004 finding the statute, 18 U.S.C. �2709, unconstitutional on its face under the First and Fourth amendments. In Doe v. Ashcroft, 04 Civ. 2614, involving an Internet access firm, Judge Marrero found that the statute “effectively bars or substantially deters any judicial challenge to the propriety of an NSL request.” And the ban on public disclosure, he said, “operates as an unconstitutional prior restraint on speech.” The second case concerned a much narrower issue. It came from Connecticut, where District Judge Janet Hall granted a preliminary injunction in Doe v. Gonzales, 05 Civ. 1256, against enforcement of the gag order. The injunction was sought by a library that wanted to reveal that it had received an NSL in order to take part in the debate over changes to the statute now being considered by the U.S. House and Senate. Judges Cardamone and Parker both said they were concerned about a gag order that apparently runs in perpetuity. “The troubling aspect from my standpoint is that there is no limit,” Cardamone said. Later, he said he was worried that the statute, which forces recipients to take the secret “to the grave,” was contrary to the values of an open society in that it seemed to “throw our society” under “a great shroud of secrecy.” There also should be a “mechanism,” Cardamone said, for lifting the gag order, whether by application to a court or some other means. JUDICIAL REVIEW AVAILABLE But Parker appeared sympathetic to Letter’s argument that, contrary to Judge Marrero’s finding, judicial review is indeed available, and the House and Senate are considering new language that would make that fact explicit. Letter also indicated that, based on a ruling by the circuit, the government would consider changing the wording of the letters it sends to providers. Letter called the NSL procedure “an extremely important technique” in terror investigations. The non-disclosure provision, he said, was needed because of the nature of national security investigations, which are “forward looking” and cumulative. Jaffer said the lack of criminal or civil penalties does not mean that the government might not use another statute to penalize institutions that do not comply with an NSL or the gag order. One question that puzzled the judges is why there have been so few court challenges to the letters since 1986. Jaffer’s answer was that since the Patriot Act changes were made to the procedure “hundreds” of the letters were issued over a 14-month period and that more challenges could be expected. He also said the lack of challenges in the past supported his argument that the letters are coercive. And while Letter sought to reassure the court by noting that most NSL recipients are large corporations being asked to turn over data, Cardamone mentioned that one of the recipients was an Internet service provider with only three employees. One widely held concern among opponents of the measure is that corporations who willingly comply with NSL requests are aiding and abetting civil liberties violations by federal agents. Parker told Jaffer that “the government says you are entitled to a lawyer” and judicial review is available. “I mean, what more do you want?” Parker said. “You do want these things, don’t you?” Parker said the ACLU should wait and see what the court’s opinion in the case will say, hinting that it would probably address several of its concerns, including on the right to consult with counsel. But Jaffer said, “I don’t think that holding is going to be sufficient.”

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