For the second time since the USA Patriot Act broadened the FBI's power to demand private records in secret, a federal judge ruled yesterday that it is unconstitutional for the government to impose an automatic and permanent ban on public disclosure of any case in which it uses that power.
U.S. District Judge Janet C. Hall found that the statutory gag order, invoked every time the FBI uses a "national security letter" to demand information in terrorism or espionage cases, violated the First Amendment rights of a Connecticut library consortium that is refusing to cooperate with the FBI. The consortium, known in court papers thus far as "John Doe," wants to identify itself and make public its opposition to use of such letters against library patrons.
Hall freed the consortium and its officers to identify only themselves, not the target or targets of the FBI investigation. She stayed her order until Sept. 20 to enable the Bush administration to appeal. The appellate court, the U.S. Court of Appeals for the 2nd Circuit, is already considering a New York district judge's decision last year to strike down the entire statutory basis for national security letters on First and Fourth Amendment grounds.
Hall's decision came just 30 days after the librarians, represented and joined as plaintiffs by the American Civil Liberties Union, filed their case. She said she intended to permit the librarians to join concretely in a largely speculative public debate about the use of the Patriot Act's more controversial powers, which are exercised in secret.
Congress is nearing completion of a bill to revise and make permanent key portions of the law. As recently as Thursday, Assistant Attorney General William E. Moschella declined a request from Sen. Richard J. Durbin (D-Ill.) to declassify the "aggregate number" of national security letters used in the past three years to obtain telephone, Internet, financial and consumer credit records.
"The potential for abuse is written into the statute: the very people who might have information regarding investigative abuses and overreaching are preemptively prevented from sharing that information with the public," Hall wrote.
Hall was stark in her dismissal of the government's factual basis for claiming that damage would result from disclosure of the librarians' names. At an Aug. 31 hearing, she described herself as just "a little district court judge sitting here in Bridgeport," not "sophisticated about international terrorism," and she acknowledged that a gag order might be vital for national security under some circumstances.
But after reviewing classified materials delivered to her chambers during Monday's Labor Day holiday, she wrote yesterday that the government had given her "nothing specific" to justify this gag.
The sparseness of the government's case, she said, was "particularly noteworthy given the fact that advocates of the legislation have consistently relied on the public's faith in the government to apply the statute narrowly."
Jameel Jaffer, one of the ACLU's four lawyers on the case, said Hall had recognized that "this gag is preventing our client from participating in the debate about the Patriot Act."
Justice Department spokeswoman Gina Talamona read a one-sentence statement and declined to elaborate. "We are reviewing the opinion and actively considering all of our options, including appeal," she said.