Washington-Two new challenges to parts of the USA Patriot Act-Congress' massive response to Sept. 11, 2001-face daunting hurdles but are likely to be only the first of several suits.
"This is not the final gunshot. It's the opening salvo," said Charles Shanor of Emory University School of Law. "It's a complex process that no doubt will involve the courts, the legislature and public opinion. And it could turn on matters that are as nonlegal as whether there is another terrorist attack between now and judicial decision time."
The process involves weighing whether the judgments made in the act were appropriate or over-reactions, Shanor and others said.
"Part of the context of this is the Patriot Act was enacted in an environment where there was virtually no discussion or careful scrutiny," said Stephen Schulhofer of New York University School of Law. "Maybe there shouldn't have been because we needed to act quickly. But now we have the time and room for thought about what we need in the post-9/11 world."
Some of that rethinking is beginning in Congress. Two weeks ago, the House, voting 309-118, passed a Republican-sponsored amendment to an appropriations bill for the departments of Commerce, Justice and State to bar "sneak and peek" warrants. They authorize searches but delay notification of the search until after it is conducted. That amendment is in the Senate.
Bills also have been introduced in the Senate to address other Patriot Act provisions, including one at the center of a constitutional challenge brought by the American Civil Liberties Union.
The ACLU suit is widely viewed as the more ambitious of the two recent constitutional challenges.
In a suit in federal court in Detroit, the ACLU represents groups that believe that they, their clients or members have been, or are, targets of investigations conducted under Section 215 of the act. They include an Arab-American civil rights organization, a Muslim community group that operates a mosque and school and a church-related refugee center. Muslim Community Association of Ann Arbor v. Ashcroft, No. 03-72913 (E.D. Mich. July 30, 2003).
Section 215 amended the Foreign Intelligence Surveillance Act of 1978 (FISA), which governs the FBI's surveillance of foreign powers and their agents in the United States. It created the Foreign Intelligence Surveillance Court to review the government's applications for surveillance orders.
Previously, the law allowed federal intelligence officers to seek court orders for access to certain car rental, storage and hotel accommodation records. An order would be granted if the officers had "specific and articulable facts" that the records sought pertained to a foreign agent or power.
Wider powers
The Patriot Act expanded the information that could be sought to include any tangible item regardless of who is in possession of it. To get the court order, government officials have to specify that the records are "sought for" foreign intelligence investigations, conducted to protect against international terrorism or clandestine intelligence activities. Once the FBI makes that showing, the law says the court shall issue the order.
The investigation of a "United States person" solely on the basis of activities protected by the First Amendment is prohibited. Also outlawed is the disclosure by anyone who gets a Section 215 order of that fact to anyone else.
The ACLU charges that the law's "sought for" standard falls short of the warrant and probable-cause requirements in the Fourth Amendment.
It also charges that the breadth of information that can be accessed by the government without Fourth Amendment safeguards chills free expression in violation of the First Amendment. The amendment is also violated, the suit contends, by the "gag order." Section 215 is one of the "most problematic" in the law, said Jameel Jaffer, one of the ACLU attorneys handling the suit.
The wiretap and covert search provisions of the Foreign Intelligence Surveillance Act, he noted, require the government to show foreign-intelligence probable cause. The Patriot Act does not.
"Now all the government has to say is the records they are asking for are 'sought for' a foreign intelligence investigation," he said.
"Before the Patriot Act, the FBI had authority to obtain limited types of records from a discrete list of organizations. Now they can go to any organization and ask them to turn over 'any tangible thing.'
"We are obviously concerned about books, medical records, educational records and others. The attorney general was questioned about this a few weeks ago by a congressional committee, and he said it could be used to obtain genetic information."
The government has not yet answered the suit. A Justice Department spokeswoman said critics of Section 215 frequently ignore its "narrow scope that scrupulously respects First Amendment rights, requires a court order to obtain any business record and is subject to congressional reporting and oversight on a regular basis.
"Section 215 actually imposes more restrictions on its use than a federal grand jury subpoena for the same records," she said.
Some scholars sympathetic to the ACLU's arguments see a major hurdle to a court even getting to them. The plaintiffs cannot claim a specific injury giving them the traditional standing to sue. Because of the secrecy provision, they have only a "reasonable belief" that the law has been or is being used against them.
"I think that is going to be the most important, practical and legal obstacle for the lawsuit," said Timothy Lynch of the Cato Institute. "Will they say this is not a real case or controversy, or because of the gag provisions, will they say the ACLU and its clients have enough for the court to address the questions?"
The suit raises "novel standing issues," Jaffer acknowledged, adding, "It's not clear how this could be challenged if we did not do it this way."
The government, he noted, has said that the evidence can be challenged when it is introduced in a criminal trial.
"But only a very small percentage of people targeted under the foreign intelligence powers are ever prosecuted," said Jaffer. "And innocent people would have to rely on a person prosecuted to raise their own rights."
John Yoo of the University of California, Berkeley School of Law and a visiting fellow at the American Enterprise Institute said there are no special standing rules that would apply to the ACLU suit.
"The major way to enforce the Fourth Amendment generally is suppression of evidence, but if the government never uses the evidence, that's it," he said.
Yoo also sees little chance of the suit's success.
"The privacy interest is so low in business records," he said. "In many ways, what happened in the FISA law is actually more protective than what the Constitution requires. There's no real Fourth Amendment protection here for this kind of business information, but as a policy matter, we have chosen to have an Article III federal judge approve the request."
Schulhofer noted that in cases in the 1970s the Supreme Court held that there was no reasonable expectation of privacy of information voluntarily turned over to third parties. Those rulings led to privacy laws, but they are trumped by the Patriot Act, he added.
"It may be this lawsuit can't get anywhere as a constitutional matter, but underlying it is a value judgment as to what should be protected," said Schulhofer.
Some experts believe that the suit's attack on the "gag order" may be its strongest element.
"The broader the reach of the government for information and the broader the word 'intelligence' is interpreted, the more restraint there is going to be on people being able to disclose and discuss what the government is doing in the name of intelligence," said Stephen Saltzburg of George Washington University Law School.
"The plain meaning of 215 seems to be that the judge is not to review the basis for the intelligence designation. It's basically the attorney general who gets to say what qualifies as intelligence gathering. That's pretty sweeping and troubling," Saltzburg said.
Second suit
The second federal constitutional challenge was filed last week in Los Angeles by the Center for Constitutional Rights on behalf of the Humanitarian Law Project, which works for peaceful resolution of conflicts. The suit challenges a Patriot Act amendment to the 1996 Antiterrorism and Effective Death Penalty Act making it a crime to provide "expert advice and assistance" to groups designated as "terrorist" by the secretary of state. Humanitarian Law Project v. Ashcroft, No. 98-1971 ABC (C.D. Calif.).
The suit contends that the inclusion of expert advice and assistance in the definition of material support to terrorist groups is void for vagueness and encroaches on core First Amendment activities.
"Under this provision, even providing assistance in negotiating a peaceful settlement is proscribed with respect to a foreign terrorist organization," said Nancy Chang, senior attorney at the Center for Constitutional Rights and co-counsel with David Cole of Georgetown University Law Center. "The core of the First Amendment is protecting controversial speech."
Some scholars said the center's suit is less likely than the ACLU's to appeal to both the courts and to the public. Courts, they said, may find providing expert advice to terrorist organizations is not unconstitutionally vague because those providing such advice ought to understand how it will be used.
Speaking of both suits, Emory's Shanor said, "Part of the strategy is not simply to win the lawsuit but to raise public consciousness of the issue, to bring it before Congress. Presumably they wouldn't be too unhappy to suffer a loss on a constitutional point if they won a favorable statutory construction ruling or the issue became volatile enough that they get support for modification of the act's language in the congressional process."
Coyle's e-mail address is mcoyle at nlj.com.