Posted May 26, 2006.

Appeals Court: Patriot Act’s Gag Provision Probably Unlawful

A federal appeals judge has criticized the FBI’s permanent ban on speech in terrorism investigations—the gag provision allowed by National Security Letters (NSLs) authorized by the USA Patriot Act—as probably unconstitutional in the light of recent congressional amendments to the law. Judge Richard Cardamone of the U.S. Court of Appeals for the Second Circuit in New York City made the comments as the court ruled May 23 on two challenges filed by the American Civil Liberties Union, one of them involving librarians in a Connecticut library consortium who received a demand for patron records through an NSL.

“While everyone recognizes national security concerns are implicated when the government investigates terrorism within our nation’s borders, such concerns should be leavened with common sense so as not forever to trump the rights of the citizenry under the Constitution,” Cardamone said, according to a May 23 Associated Press report.

Changes in the renewed Patriot Act specify that an NSL can be reviewed by a court and explicitly allows recipients to inform their lawyers. The court said the revisions rendered moot the 2005 Connecticut case, in which U.S. District Judge Janet Hall ruled that the NSL gag order prevented the librarians from joining the debate on the act’s reauthorization. Federal prosecutors dropped an appeal of Hall’s decision in April.

“A ban on speech and a shroud of secrecy in perpetuity are antithetical to democratic concepts and do not fit comfortably with the fundamental rights guaranteed American citizens,” Cardamone wrote in his ruling. “Unending secrecy of actions taken by government officials may also serve as a cover for possible official misconduct and/or incompetence.”

The ACLU announced May 26 that it would hold a press conference May 30 at 11:30 a.m. Eastern time to give four Connecticut librarians the opportunity to speak publicly for the first time about the case.

Posted May 26, 2006.