-Caveat Lector-
Begin forwarded message:
From: [EMAIL PROTECTED]
Date: September 6, 2007 11:57:17 AM PDT
To: [EMAIL PROTECTED]
Cc: [EMAIL PROTECTED], [EMAIL PROTECTED], [EMAIL PROTECTED]
Subject: Judge Rules Some Provisions of Patriot Act Are
Unconstitutional
Judge Rules Provisions of Patriot Act Unconstitutional
By Dan Eggen
Washington Post, September 6, 2007; 2:36 PM
http://www.washingtonpost.com/wp-dyn/content/article/2007/09/06/
AR2007090601438.html
A federal judge today struck down portions of the USA Patriot Act
as unconstitutional, ordering the FBI to stop issuing "national
security letters" that secretly demand customer information from
Internet service providers and other businesses.
U.S. District Judge Victor Marrero in New York ruled that the
landmark anti-terrorism law violates the First Amendment and the
Constitution's separation of powers provisions because it
effectively prohibits recipients of the FBI letters (NSLs) from
revealing their existence and does not provide adequate judicial
oversight of the process.
Marrero wrote in his 106-page ruling that Patriot Act provisions
related to NSLs are "the legislative equivalent of breaking and
entering, with an ominous free pass to the hijacking of
constitutional values."
The decision has the potential to eliminate one of the FBI's most
widely used investigative tactics. It comes amid widespread concern
on Capitol Hill over reported abuses in the way the FBI has used
its NSL powers.
NSLs allow agents in counterterrorism and counterintelligence
investigations to secretly gather Americans' phone, bank and
Internet records without a court order or a grand jury subpoena.
Although the FBI has had such power for many years, the Patriot
Act, enacted in October 2001, significantly expanded its ability to
issue the letters.
But Marrero wrote that "in light of the seriousness of the
potential intrusion into the individual's personal affairs and the
significant possibility of a chilling effect on speech and
association--particularly of expression that is critical of the
government or its policies--a compelling need exists to ensure that
the use of NSLs is subject to the safeguards of public
accountability, checks and balances, and separation of powers that
our Constitution prescribes."
He ruled that only some of the NSL provisions were
unconstitutional, but found that it was impossible to separate
those provisions from other parts of the law. He therefore struck
down the FBI's ability to issue NSLs altogether.
Marrero delayed enforcement of his order for 90 days to give the
government a chance to appeal. Justice spokesman Dean Boyd said the
department is "reviewing the decision and considering our options."
The lawsuit was filed by the American Civil Liberties Union on
behalf of a plaintiff identified only as John Doe, who was
prohibited under the law from publicly revealing that he had
received an NSL. The Washington Post identified the plaintiff in
2004 as George Christian, an employee of the Library Connection
Inc. in Windsor, Conn.
Anthony D. Romero, the ACLU's executive director, said the ruling
"is yet another setback in the Bush administration's strategy in
the war on terror and demonstrates the far-reaching efforts of this
administration to use powers that are clearly unconstitutional."
The ruling marks the second time that Marrero has struck down the
Patriot Act's NSL provisions. In 2004, the judge found the law
unconstitutional because it silenced NSL recipients and gave them
no recourse through the courts.
As the government was appealing that ruling, Congress passed new
legislation in 2005 that was aimed at solving the problems
identified by Marrero. But the judge, responding to an amended
complaint by the ACLU, ruled today that "several aspects of the
revised nondisclosure provision of the NSL statute violate the
First Amendment and the principle of separation of powers."
An internal FBI audit earlier this year found that the bureau
potentially violated the law or agency rules more than 1,000 times
while using NSLs to collect data about domestic phone calls, e-
mails and financial transactions in recent years.
Those findings followed an earlier audit by the Justice
Department's inspector general, which found a much smaller number
of violations in a narrow sampling.
More than 19,000 NSLs were issued in 2005 seeking 47,000 pieces of
information, mostly from telecommunications companies, according to
the government.
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