The Washington Post story doesn’t do a really good job of explaining what happened. Here’s the scoop (as I understand it):
The Patriot Act enables federal investigators to obtain “sneak and peek” subpoenas for national security matters. The purpose of a sneak and peek subpoena is to investigate a matter, but not let the person being investigated know about the investigation. The reason that the investigators wouldn’t want the suspect to know about the investigation is that the suspect could flee, destroy evidence, tip off co-conspirators, plant false evidence, or otherwise screw up the investigation if they became aware of it. Sneak and peek subpoenas were available long before the Patriot Act, but they were only available when investigating certain listed crimes, which didn’t include national security concerns like terrorism. So, until the Patriot Act, you could get a sneak and peek warrant to investigate illegal gambling, but not the murder of Americans abroad or giving material support to terrorist organizations.
Section 215 of the Patriot Act authorizes the issuance of subpoenas for business records (and other tangible things) if approval is given by the Foreign Intelligence Surveillance Court. These subpoenas can direct the record keeper not to disclose the subpoena to anyone, including the person being subpoenaed. The reason for this provision is, again, to keep the existence of the investigation from being disclosed to the person being investigated.
Some safeguards of the provision are that it can’t be based solely on activity protected by the First Amendment, and the Justice Dept. must report to Congress every subpoena issued under the provision. So far, no such subpoenas have been reported to Congress.
Extrapolating from that, it seems like what we’re dealing with here is a case in which the ACLU either got wind or was issued a couple of these subpoenas, and filed a lawsuit arguing that they were unconstitutional. Accordingly, the law specifies that the content of those investigations may not be disclosed to anyone. So pursuant to the Patriot Act, the Court was required to redact those portions of the ACLU’s complaint that disclosed the nature of the investigation.
It’s important to note a couple of things:
First, the complaint was not redacted because it challenged the Patriot Act, and the Patriot Act stifles dissent (or something along those lines). The complaint was redacted because it disclosed the nature and existence of an ongoing investigation into activities with national security implications.
Second, lots of lawsuits are filed under confidentiality orders. Nearly all child molestation cases are filed under indictments or with complaints that redact the child’s name and other identifying information. And any part can petition the Court to redact portions of any public disclosure for nearly any reason, including loss of business income or even embarrassment (although you’re likely to lose that complaint). It’s not typical, but it’s not exactly shocking when it happens.
Thanks!