Anonymous Comrade submits:

"Experts See Hurdles for Suits over USA Patriot Act"

Marcia Coyle, National Law Journal News

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."