Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“Liberty is the only thing you cannot have unless you give it to others.”     William Allen White

September 6, 2007

Portions Of Patriot Act Declared Unconstitutional

by Doug Mataconis

A Federal Judge in New York has ruled that key portions of the USA Patriot Act are unconstitutional:

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.

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.

While it’s unclear how well this will stand up on appeal, it’s good to see that there are at least some members of the Federal Judiciary willing to stand up against the derogation of the Fourth Amendment.

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2 Comments

  1. Wait, wait. We have a constitution?

    Comment by somebody — September 6, 2007 @ 11:39 pm
  2. Three cheers for the judiciary! It has been supine for the last five years, but at last we are seeing some progress.

    On a completely unrelated note, I’d like to offer this quote I found in Will Durant’s “Story of Civilization”. I think that the readership will enjoy it.

    “Since practical ability differs from person to person, the majority of such abilities in nearly all societies, is gathered in a minority of men. The concentration of wealth is a natural result of this concentration of ability, and regularly recurs in history. The rate of concentration varies (other factors being equal) with the economic freedom permitted by morals and the laws. Despotism may for a time retard the concentration; democracy, allowing the most liberty, accelerates it… In progressive societies the concentration may reach a point where the strength in number of the many poor rivals the strength of ability in the few rich; then the unstable equilibrium generates a critical situation, which history has diversely met by legislation redistributing wealth or revolution redistributing poverty.”

    Comment by Chepe Noyon — September 6, 2007 @ 11:52 pm

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