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2nd Circuit judges appear wary of Patriot Act secrecy rules

By The Associated Press
11.03.05

NEW YORK — A federal appeals panel yesterday suggested it might require the government to permit entities ranging from major corporations to libraries to challenge FBI demands for records under the Patriot Act.

Judges on a three-judge panel of the 2nd U.S. Circuit Court of Appeals commented as they questioned lawyers on both sides in two cases from Connecticut and New York in which lower court judges ruled that the government's secrecy requirements went too far.

Judges Barrington D. Parker Jr. and Richard Cardamone both indicated they were troubled by the seemingly endless secrecy requirements and that the court might spell out what legal avenues those subjected to the probes can follow. However, they reserved judgment yesterday.

There is "very good reason not to allow public disclosure while a counterintelligence investigation is going on," Douglas N. Letter, a Justice Department attorney, argued before the 2nd Circuit.

There are no criminal or civil penalties in place for violating the gag-order requirements, though the government could obtain a court order to enforce them, he said.

The American Civil Liberties Union argued the government was oppressive in its approach.

The 2nd Circuit was hearing appeals by the government of rulings in separate cases from New York and Connecticut.

In Connecticut, a federal judge had ruled that librarians were unfairly prevented from joining a debate over how the Patriot Act should be rewritten because of a gag order issued in an FBI records request about library patrons.

Prosecutors said the gag order only prevented the release of the client's identity, not the client's ability to speak about the Patriot Act.

In the New York case, a federal judge had ruled that national security letters violated the Constitution because they amounted to unreasonable search and seizure.

The FBI can issue national security letters without a judge's approval in terrorism and espionage cases. They require telephone companies, Internet service providers, banks, credit bureaus and other businesses to produce highly personal records about their customers or subscribers.

People who receive the letters are prohibited by law from disclosing to anyone that they got them.

The judge also ruled the nondisclosure requirement violated free speech.

The Patriot Act, passed shortly after the Sept. 11, 2001, attacks, allowed expanded surveillance of terror suspects, increased use of material-witness warrants to hold suspects incommunicado and permitted secret proceedings in immigration cases.


Update
Prosecutors to drop appeal in Patriot Act librarian case
Federal judge ruled last year that gag order should be lifted; U.S. attorney says it no longer makes sense to fight that decision. 04.13.06

Previous
Patriot Act appeal fails at Supreme Court
Justice Ginsburg, denying emergency appeal by libraries, says 2nd Circuit must consider constitutional questions before gag order is lifted. 10.07.05

Related

Federal court strikes down part of Patriot Act

Judge says provision allowing secret searches of records from ISPs, other businesses violates First Amendment because it bars companies from ever disclosing search took place. 09.30.04

Senate OKs Patriot Act reauthorization

Lawmakers approve four-year expiration dates on library, wiretap provisions, setting up fall confrontation with House, which wants 10-year sunsets. 08.01.05

Congress considers curbing some Patriot Act powers
Proposed House-Senate deal could reject Bush administration's request to grant FBI greater authority to subpoena records without a judge's approval. 11.10.05

Tentative deal on Patriot Act teeters
House-Senate compromise measure falters after Democrats, civil libertarians complain draft wouldn't sufficiently curb FBI's power to gather info on citizens. 11.17.05

Patriot Act

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