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Judge Invalidates Patriot Act Provisions
FBI Is Told to Halt Warrantless Tactic

By Dan Eggen
Washington Post Staff Writer
Friday, September 7, 2007; Page A01

A federal judge struck down controversial portions of the USA Patriot
Act in a ruling that declared them unconstitutional yesterday,
ordering the FBI to stop its wide use of a warrantless tactic for
obtaining e-mail and telephone data from private companies for
counterterrorism investigations.

The ruling by U.S. District Judge Victor Marrero in New York said the
FBI's use of secret "national security letters" to demand such data
violates the First Amendment and constitutional provisions on the
separation of powers, because the FBI can impose indefinite gag orders
on the companies and the courts have little opportunity to review the
letters.

Anthony D. Romero, head of the ACLU, said the ruling illustrates the
"efforts of this administration to use powers that are clearly
unconstitutional." (By George Nikitin -- Associated Press) 

 
The secrecy provisions are "the legislative equivalent of breaking and
entering, with an ominous free pass to the hijacking of constitutional
values," Marrero wrote. His strongly worded 103-page opinion amounted
to a rebuke of both the administration and Congress, which had revised
the act in 2005 to take into account an earlier ruling by the judge on
the same topic.

Although a government appeal is likely, the decision could eliminate
or sharply curtail the FBI's issuance of tens of thousands of national
security letters (NSLs) each year to telephone companies, Internet
providers and other communications firms. The FBI says it typically
orders that such letters be kept confidential to make sure that
suspects do not learn they are being investigated, as well as to
protect "sources and methods" used in terrorism and
counterintelligence probes.

The ruling follows reports this year by Justice Department and FBI
auditors that the FBI potentially violated privacy laws or bureau
rules more than a thousand times while issuing NSLs in recent years --
violations that did not come to light quickly, partly because of the
Patriot Act's secrecy rules.

"The risk of investing the FBI with unchecked discretion to restrict
such speech is that government agents, based on their own
self-certification, may limit speech that does not pose a significant
threat to national security or other compelling government interest,"
Marrero said.

The Justice Department declined to comment on the ruling. "We are
reviewing the decision and considering our options," said spokesman
Dean Boyd.

But Anthony D. Romero, executive director of the American Civil
Liberties Union, which filed the lawsuit in the case, 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."

Marrero's decision would bar the use of NSLs to demand data from
electronic communications companies, a procedure that was the focus of
the lawsuit. But the ruling appears to leave untouched the FBI's
ability to demand bank records, credit reports and other financial
data related to counterterrorism and other probes, because those
authorities are covered by other statutes, according to legal experts.
Marrero delayed enforcement of his order for 90 days to give the
government a chance to appeal.

Although the FBI has had the ability to issue NSLs for many years, the
Patriot Act, enacted in October 2001, significantly relaxed the rules
for using them while increasing the secrecy requirements. The result
has been a surge in NSL requests, from fewer than 9,000 in 2000 to
nearly 50,000 in 2005, according to Justice Department records.

Yesterday's ruling marks the second time that Marrero has struck down
the Patriot Act's NSL provisions. In 2004, after the ACLU filed suit
on behalf of the same plaintiff -- an Internet service provider
identified as John Doe -- he ruled similarly that the NSL provisions
were unconstitutional because they silenced recipients and gave them
no recourse through the courts.

While a government appeal was pending, Congress passed legislation in
2005 aimed at solving the problems identified by Marrero. But the
judge ruled yesterday that the revisions were not adequate and that
under the new law, "several aspects . . . violate the First Amendment
and the principle of separation of powers."


http://www.washingtonpost.com/wp-dyn/content/article/2007/09/06/AR2007090601438.html?hpid=moreheadlines%22%3EJudge


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