U.S. Sen. John Cornyn (R-Texas)
Chairman, Subcommittee on the Constitution, Civil Rights and Property Rights
Yesterday, a U.S. district judge in New York struck down as unconstitutional a provision of the 1986 Electronic Communications Privacy Act, authored in the Senate by Senator Patrick Leahy.
* In a press release, the ACLU?s Executive Director claimed that ?[t]his is a landmark victory against the Ashcroft Justice Department.? In truth, it was a judicial action against a Leahy-sponsored amendment.
* The court did not rule that any part of the USA PATRIOT Act is unconstitutional. Yet the ACLU immediately and falsely claimed?and the media reported?that the court had struck down the USA PATRIOT Act as unconstitutional.
* In the case, Doe v. Ashcroft, decided yesterday, U.S. District Judge Victor Marrero struck down 18 U.S.C. § 2709 as unconstitutional. But as he noted, ?Section 2709 has been available to the FBI since 1986.?
o 18 U.S.C. § 2709 empowers federal terrorism investigators (typically, the FBI) to issue National Security Letters (NSLs) in order to obtain information from wire communication firms ? in this case, an internet service provider ? about their subscribers. The NSLs are issued secretly, and the recipient ISP is prohibited from notifying any other party that it has received the request. 18 U.S.C. § 2709 provides no exceptions allowing the recipient to consult an attorney, it contains no express judicial review, and it provides no means for the NSL recipient ever to go to court to lift the nondisclosure requirement.
o As Senator Leahy explained on the floor of the U.S. Senate on October 1, 1986, the language he offered ?provides a clear procedure for access to telephone toll records in counterintelligence investigations.?
o In Doe v. Ashcroft, the district court found the nondisclosure requirement of 18 U.S.C. § 2709 unconstitutional. The court focused on three problems that it deemed, collectively, to go ?too far? and to violate the First Amendment: (1) the nondisclosure requirement is automatic, regardless of even a declaration of need in the particular case; (2) the nondisclosure requirement is permanent; and (3) the nondisclosure requirement cannot be challenged in court when first created, nor is it ever subject to judicial review. The court did not indicate whether any of these three conditions, alone, would be unconstitutional.
o Notably, there was no disagreement in Doe between the government and the district court on the need for judicial review. In fact, the government argued in favor of judicial review. The problem was simply that the court interpreted the statute not to provide for judicial review, and struck down the statute accordingly. In other words, the government and the court agreed on the need for judicial review ? this was simply a legal dispute as to whether the Leahy amendment provided for judicial review.
o The district judge has stayed the judgment to allow the government to appeal as expected.
* The USA PATRIOT Act did amend 18 U.S.C. § 2709, but that amendment was not relevant to the court?s decision.
* The SAFE Act does not address the issue raised by the district court.
* Senator Kerry has never expressed any objection to this provision of the 1986 Electronic Communications Privacy Act. In fact, this legislation was adopted by voice vote in the Senate.
* In Doe, the government actually argued in favor of judicial review ? but the court construed the statute not to permit judicial review, and struck down the statute as unconstitutional as a result.
Cornyn said: ?To date, I have yet to be presented with evidence suggesting that the USA PATRIOT Act has resulted in any real civil liberties deprivations being suffered by real people.?
* The USA PATRIOT Act was passed with overwhelming bipartisan margins (98-1 in the Senate, and 357-66 in the House). It was approved by the House on October 24, 2001, and the Senate the next day ? a month and a half after 9/11.
* The bill received the support of numerous Senators on both sides of the aisle, who praised the law for appropriately upgrading and improving our abilities to fight the war on terrorism, without offending civil liberties.
* Moreover, at an October 2003 Judiciary Committee oversight hearing on the USA PATRIOT Act, Senator Feinstein reiterated her support for the Act, and her rejection of criticisms made against the Act: ?I have never had a single abuse of the PATRIOT Act reported to me. My staff emailed the ACLU and asked them for instances of actual abuses. They emailed back and said they had none.?
Sen. Cornyn chairs the subcommittee on the Constitution, Civil Rights & Property Rights, and is the only former judge on the committee. He served previously as Texas Attorney General, Texas Supreme Court Justice, and Bexar County District Judge.
Facebook
Twitter