Hot off the press from the Campaign for Reader Privacy, is news from the joint conference committee whose mandate was to reconcile the House (H.R. 3199
- the FBI must show that the individual whose records are being sought is suspected of involvement in terrorism or other criminal activity;
- that booksellers and librarians who receive PATRIOT Act orders be allowed to challenge their validity in court;
- that the current permanent and generalized gag order that accompanies PATRIOT Act warrants be replaced by temporary orders in specific circumstances.
The Senate version of the legislation included a requirement of individual specific suspicion; this was dropped in the joint version of the bill. The new version only allows challenges to a Section 215 order in the FISA court, whose proceedings (and rules) are secret. The joint version of the bill has Section 215 sunset in seven years.
According to the Campaign for Reader Privacy, the House of Representatives rules require that a conference report be published for three days before a final vote on the legislation. However, House leaders say they will waive this requirement. The vote could happen Thursday or Friday.
It's time once again to contact your Senators and Representatives and request them to vote against this bill.
The Coalition for Reader Privacy was promoting access to the federal courts, not the FISA courts. The FISA court's procedures are unknown and its hearings and decisions are secret. Access to the federal courts was not included in the compromise bill. There is no apparent reason why federal judges are not competent to hear Section 215 challenges, and such access was a part of previous versions of the bill. Regarding National Security Letters, the final rule on these is not yet clear, and is currently being litigated. That's the Connecticut library consortium case.
Posted by: Susan Nevelow Mart | November 22, 2005 at 10:01 AM
Susan, with regard to court challenges, the CRP document you link to states that, "The bill outlines a new procedure that would allow recipients of Section 215 orders to challenge them in the secret FISA court [...]."
GWU law professor Orin Kerr also says in his initial reaction to the bill at the Volokh Conspiracy blog that, "The FISA Court of Review can hear appeals from the FISA court's resolution of those challenges, and the losing party can then file a petition for certiorari before the Supreme Court."
Also with regard to gag orders, the CRP document does not say that a provision for gag order changes was not included, and Orin Kerr writes in his response, "recipients of NSLs can file a petition in any district court in which they live or do business asking the district court to modify or set aside the order on the ground that compliance would be 'unreasonable, oppressive, or otherwise unlawful.' They can also petition the court for permission to no longer be bound by the gag orders that accompany NSLs," etc.
Does this all square with what you write in your post?
Posted by: Jack Stephens | November 17, 2005 at 01:40 PM