Saturday, September 08, 2007

Oh, yes!

In 2004, in response to a suit brought by the ACLU, US District Court Judge Victor Marrero in New York ruled that the Patriot Act provisions related to National Security Letters
violate the Constitution because they amounted to unreasonable search and seizure. He found free-speech violations in the nondisclosure requirement, which for example, disallowed an Internet service provider from telling customers their records were being turned over to the government.

After he ruled, Congress revised the Patriot Act in 2005, and the 2nd U.S. Circuit Court of Appeals directed that Marrero review the law's constitutionality a second time.
And he's ruled the same way again. AP for Friday has the word:
A federal judge struck down a key part of the USA Patriot Act on Thursday in a ruling that defended the need for judicial oversight of laws and bashed Congress for passing a law that makes possible "far-reaching invasions of liberty."
The issue was not the NSLs themselves, which allow federal agents to obtain financial, telephone, and Internet records without a warrant, but the ability of the government to keep the demands secret, even to the point of requiring businesses and organizations presented with such demands to keep silent about them under pain of imprisonment. With NSLs, AFP notes in its report on Marrero's decision,
[i]nstead of going to court to get approval, agents only have to show their supervisor that the information is "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities."
That is, the person whose records are demanded by the feds doesn't have to be suspected of any wrongdoing or even be a target of an investigation, and no court is involved - the only requirement is that some supervisor or another decides the information is "relevant." That sort of wide-reaching definition is an open door to abuse, which of course is exactly what happened.
A March government report showed that the FBI issued about 8,500 national security letter, or NSL, requests in 2000, the year prior to passage of the USA Patriot Act. By 2003, the number of requests had risen to 39,000 and to 56,000 in 2004 before falling to 47,000 in 2005. The overwhelming majority of the requests sought telephone billing records information, telephone or e-mail subscriber information or electronic communication transactional records.
That is, from 8,500 in one year to an average of over 47,000 per year. What's more,
in hundreds of cases [the FBI] broke the rules to get them by either seeking information not permitted under the act or else not getting sufficient approval, a congressionally-requested report found.
In the wake of Marrero's 2004 ruling,
Congress rewrote the law in 2005 to give people the right to challenge the gag order....

But the FBI was given the final word on whether it is safe to remove the gag order, something Marrero said Thursday "offends the fundamental constitutional principals of checks and balances and separations of powers."
Allowing the provision to stand would run the risk, Marrero said in his 103-page ruling, that
the constitutional barriers against governmental abuse "may eventually collapse, with consequential diminution of the judiciary's function, and hence potential dire effects to individual freedoms."

In that event, he said, the judiciary could become "a mere mouthpiece of the legislature."
Marrero stayed the effect of his ruling for 90 days to give the government a chance to appeal. Which of course they will. However, Marrero is wrong in one way: The ultimate intent in such an appeal is not to make the judiciary a "mere mouthpiece of the legislature." It's to make it a mere mouthpiece of the executive.

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