Groups urge court to end use of national security letters

A pair of watchdog groups urged a federal appeals court Wednesday to strike down a section of a 22-year-old surveillance law which, under a PATRIOT Act expansion, lets the FBI obtain private records about citizens' communications without court approval as long as the data could advance a terrorism or espionage investigation.

A judge deemed the national security letter statute unconstitutional, but the Bush administration appealed the ruling. In a friend-of-the-court brief before the 2nd U.S. Circuit Court of Appeals, the Electronic Frontier Foundation and the National Security Archive argued that secrecy surrounding the administrative subpoenas undermines government accountability and enables misuse of authority.

The filing comes a week after the Justice Department's release of a report intended to update a 2007 probe that revealed flawed and possibly illegal uses of the security letters by the FBI. Justice Department Inspector General Glenn Fine's latest review flagged such violations as issuances of letters without authorization, improper requests and unauthorized collection of records due to FBI errors or mistakes made by letter recipients. Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., said legislative action may be needed.

House Judiciary Committee Chairman John Conyers, D-Mich., said he will "continue to hold the administration accountable for its actions" at an April FBI oversight hearing.

Two House bills and one Senate measure introduced last year proposed changes in how security letters are handled. House Homeland Security Intelligence Subcommittee Chairwoman Jane Harman, D-Calif., sponsored one; House Judiciary Constitution, Civil Rights and Civil Liberties Subcommittee Chairman Jerrold Nadler, D-N.Y. sponsored another. Sen. Russell Feingold, D-Wis., sponsored the Senate bill. Nadler's subcommittee is planning a hearing on the issue, likely in April.

The FBI has discretion to place recipients of NSLs under indefinite gag orders. In a 2004 opinion rejecting the mandate, U.S. District Judge Victor Marrero wrote that "democracy abhors undue secrecy" and "[a]n unlimited government warrant to conceal, effectively a form of secrecy per se, has no place in our open society."

The case was brought by the American Civil Liberties Union and an anonymous Internet service provider in April 2004 and the FBI insists the gag order should remain even though the agency dropped its demand for records more than a year ago, ACLU attorney Jameel Jaffer said Thursday. The government's reply brief is due next month and oral argument is expected in April or May.