NYC Bar Brief Argues Patriot Act Provision 'Unconstitutional'
Cites the Importance of Judicial Review in FBI Inquiries

The New York City Bar, through its Civil Rights committee, is urging the U.S. Court of Appeals in Manhattan to affirm a lower court ruling finding unconstitutional a provision of the USA Patriot Act that permits the FBI to collect customer information from communications institutions in cases of suspected terrorism -- but without any provisions for meaningful judicial oversight.

“No provision is made in Section 2709 for judicial review at any stage and, most importantly, the statute imposes … an absolute prohibition, of unlimited duration, on disclosing to ‘any person’ that the FBI has sought or obtained information,” the Association said in its amicus brief, filed August 3rd. “The ban on disclosure will effectively prohibit all but the most courageous from consulting counsel or seeking judicial review.”

Section 2709 is an amendment to the Federal Criminal Code added by the USA Patriot Act on October 26, 2001. It allows the FBI to issue National Security Letters of inquiry to communications institutions -- including internet providers, universities and libraries -- based solely on the FBI’s judgment that the recipient possesses information relevant to an authorized terrorist investigation.

The plaintiff in the original case, an internet provider, received a National Security Letter from the FBI and challenged its ban on judicial review, with help from the American Civil Liberties Union. Federal District Judge Victor Marrero ruled in its favor, and the government has appealed. The Association says in its brief that the right to have a constitutional challenge heard by an independent judiciary is a fundamental right that is protected by the Fourth Amendment, the Due Process Clause of the Fifth Amendment, and the First Amendment.

“In the end, it is the judiciary that must stand as a check on the Executive and Legislative branches when they overstep constitutional bounds. There is nothing more fundamental to our democratic constitutional system than the ability to have one’s grievances heard and liberties protected by a neutral tribunal. Section 2709 … plainly violates the Constitution by effectively precluding judicial review of any kind ... The District Court’s decision should therefore be affirmed.”

To obtain a copy of the Association’s brief, please click on the convenient link below:

http://((www.nycbar.org))/pdf/report/CLM_PDF.pdf

About the Association
The Association of the Bar of the City of New York (www.nycbar.org) was founded in 1870, and since then has been dedicated to maintaining the high ethical standards of the profession, promoting reform of the law, and providing service to the profession and the public.