The Magazine

Taking Dictation from the ACLU

A case study in anti-Patriot Act propaganda.

Oct 18, 2004, Vol. 10, No. 06 • By HEATHER MAC DONALD
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IMAGINE THE New York Times writing a damning article about the Clinton administration's tax policies cribbed exclusively from a Heritage Foundation press release. Can't do it, can you?

How about the Gray Lady recycling ACLU misinformation about the Patriot Act without any additional research? This time, no need to imagine anything: Both the New York Times and the Washington Post did exactly that recently and thereby published a tissue of fabrication. Both papers issued tight-lipped corrections the next day, but the damage had been done: The mainstream media's overpowering lust for anti-Patriot Act propaganda had been exposed as neatly as if a trap had been laid by the Ashcroft Justice Department.

The unmasking began on September 28, when a federal judge overturned a 1986 law allowing the FBI to seek customer records from phone and Internet companies in terrorism investigations. Section 2709 of the Electronic Communications Privacy Act allows the FBI to issue a "national security letter" (a type of subpoena) to a communications carrier demanding the name, address, length of service, and billing records of a customer when such information is relevant to stopping terrorism. The FBI may not see the content of the customer's communications. But simple billing records might establish, say, that a particular Moroccan engineering student about whom the Bureau had received classified information had been calling an al Qaeda handler in Pakistan.

In April, the ACLU sued to invalidate the national security letter (NSL) provision of the Electronic Communications Privacy Act on primarily two grounds: first, that section 2709 failed to spell out any process whereby a phone or Internet company could try to quash an NSL in court, and, second, that it prohibited the recipient of an NSL from disclosing that he had received such a request from the FBI. These features of the law violate the First and Fourth Amendments of the Constitution, according to the ACLU.

Surprisingly, the government agreed with at least one of the ACLU's assumptions. The recipient of a national security letter, no less than the target of any other subpoena, the government acknowledged, should be able to contest the document request in court--and, in fact, he can. Such a right of challenge is implicit in section 2709, according to Justice Department attorneys; thus, the absence of an explicit procedure for court review was no reason to throw out the law.

On the question of whether the FBI could prohibit an NSL recipient from disclosing the request, the Justice attorneys by contrast disagreed sharply with the ACLU. Secrecy is absolutely essential to counterterrorism work, maintained the government; revealing that particular individuals are under surveillance could fatally jeopardize an investigation and put informants' lives at risk. But even here, the government conceded that an NSL recipient could at some point go to court to argue that the disclosure ban was no longer necessary.

Federal judge Victor Marrero of the Southern District of New York sided with the ACLU and declared section 2709 of the Electronic Communications Privacy Act unconstitutional. He declined to read an implied right of challenge into the provision--thus finding that it impermissibly forbade court review, and he dismissed the presumptive need for absolute secrecy in terrorism cases.

Marrero's decision--Doe v. Ashcroft --was a victory for the ACLU, to be sure, but what it wasn't was a repudiation of the Patriot Act. The judge mentioned the Patriot Act maybe three times in a 120-page decision, merely to note that it had modified the 1986 law in a way that had nothing to do with the court challenge. (Specifically, the Patriot Act continued a process begun in 1993 of broadening the application of NSLs to communications customers who were not foreign agents. This Patriot Act amendment was not at issue in the ACLU case; only the absence of a judicial review provision in the original 1986 law and the original disclosure ban were under litigation.)

But the ACLU spun Doe v. Ashcroft as a major blow to the Patriot Act and to the Bush administration's war on terror. Its September 29 press release crowed: "Federal Court Strikes Down Patriot Act Surveillance Power as Unconstitutional." The release quoted executive director Anthony Romero: "'This is a landmark victory against the Ashcroft Justice Department's misguided attempt to intrude into the lives of innocent Americans.'" Another attorney's blurb declared: "'As this decision suggests, certain provisions of the Patriot Act should never have been enacted in the first place.'" Associate legal director Ann Beeson melodramatically opined: "'It is an enormous relief to be able to tell the world just how dangerous and extreme this Patriot Act power is.'"