G
Gandalf Grey
Guest
Judge Strikes Down Parts Of Patriot Act
NEW YORK, Sept. 6, 2007
--------------------------------------------------------------------------------
(CBS/AP) A federal judge struck down parts of the revised USA Patriot Act as
unconstitutional Thursday, saying courts must be allowed to supervise cases
where the government orders Internet providers to turn over records without
telling customers.
U.S. District Judge Victor Marrero said the government orders must be
subject to meaningful judicial review and that the recently rewritten
Patriot Act "offends the fundamental constitutional principles of checks and
balances and separation of powers."
The law had been challenged by the American Civil Liberties Union, which
complained that the revised law allowed the FBI to demand records without
the kind of court order required for other government searches.
The ACLU said it was improper to issue so-called national security letters,
or NSLs - investigative tools used by the FBI to compel businesses to turn
over customer information - without a judge's order or grand jury subpoena.
Examples of such businesses include Internet service providers, telephone
companies and public libraries.
"The good news for civil libertarians is that the ruling puts this part of
the Patriot Act into doubt," said CBS News legal analyst Andrew Cohen. "The
bad news is that the ruling almost certainly will be appealed to more
conservative judges and that even if they also say the law goes too far,
Congress retains the right to step back in again and tweak the rules.
"The issue is far from a novel one - who gets to decide what companies can
say to their customers when the government forces those companies to turn
over certain records? Does a judge get to decide or do federal law
enforcement agents? It's a question that has been debated since before
9/11," Cohen said.
Jameel Jaffer, who argued the case for the ACLU, said, "We're very pleased
with the decision."
He said the revised law had wrongly given the FBI sweeping authority to
control speech because the agency was allowed to decide on its own - without
court review - whether a company receiving an NSL had to remain silent or
whether it could reveal to its customers that it was turning over records.
Yusill Scribner, a spokeswoman for the U.S. Attorney's office, said the
government had no immediate comment on the ruling.
In 2004, ruling on the initial version of the Patriot Act, the judge said
the letters violate the Constitution because they amounted to unreasonable
search and seizure. He found that the nondisclosure requirement - under
which an Internet service provider, for instance, would not be allowed to
tell customers that it was turning over their records to the government -
violated free speech.
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.
Marrero originally ruled in a case pertaining to an unidentified Internet
service provider that received one of the letters, in which the FBI claimed
that phone or Internet records were "relevant to an authorized investigation
to protect against international terrorism or clandestine intelligence
activities."
The ACLU complained that Congress' revision of the NSL law didn't go far
enough to protect people because the government could still order companies
to turn over their records, and remain silent about it, if the FBI
determined that the case involved national security.
The judge said the way the law was written "reflects an attempt by Congress
and the executive to infringe upon the judiciary's designated role under the
Constitution."
He added: "It is axiomatic that in our system of government it is the
province of the courts to say what the law is. When Congress attempts to
curtail or supersede this role, it jeopardizes the delicate balance of
powers among the three branches of government and endangers the very
foundations of our constitutional system."
--
NOTICE: This post contains copyrighted material the use of which has not
always been authorized by the copyright owner. I am making such material
available to advance understanding of
political, human rights, democracy, scientific, and social justice issues. I
believe this constitutes a 'fair use' of such copyrighted material as
provided for in section 107 of the US Copyright
Law. In accordance with Title 17 U.S.C. Section 107
"A little patience and we shall see the reign of witches pass over, their
spells dissolve, and the people recovering their true sight, restore their
government to its true principles. It is true that in the meantime we are
suffering deeply in spirit,
and incurring the horrors of a war and long oppressions of enormous public
debt. But if the game runs sometimes against us at home we must have
patience till luck turns, and then we shall have an opportunity of winning
back the principles we have lost, for this is a game where principles are at
stake."
-Thomas Jefferson
NEW YORK, Sept. 6, 2007
--------------------------------------------------------------------------------
(CBS/AP) A federal judge struck down parts of the revised USA Patriot Act as
unconstitutional Thursday, saying courts must be allowed to supervise cases
where the government orders Internet providers to turn over records without
telling customers.
U.S. District Judge Victor Marrero said the government orders must be
subject to meaningful judicial review and that the recently rewritten
Patriot Act "offends the fundamental constitutional principles of checks and
balances and separation of powers."
The law had been challenged by the American Civil Liberties Union, which
complained that the revised law allowed the FBI to demand records without
the kind of court order required for other government searches.
The ACLU said it was improper to issue so-called national security letters,
or NSLs - investigative tools used by the FBI to compel businesses to turn
over customer information - without a judge's order or grand jury subpoena.
Examples of such businesses include Internet service providers, telephone
companies and public libraries.
"The good news for civil libertarians is that the ruling puts this part of
the Patriot Act into doubt," said CBS News legal analyst Andrew Cohen. "The
bad news is that the ruling almost certainly will be appealed to more
conservative judges and that even if they also say the law goes too far,
Congress retains the right to step back in again and tweak the rules.
"The issue is far from a novel one - who gets to decide what companies can
say to their customers when the government forces those companies to turn
over certain records? Does a judge get to decide or do federal law
enforcement agents? It's a question that has been debated since before
9/11," Cohen said.
Jameel Jaffer, who argued the case for the ACLU, said, "We're very pleased
with the decision."
He said the revised law had wrongly given the FBI sweeping authority to
control speech because the agency was allowed to decide on its own - without
court review - whether a company receiving an NSL had to remain silent or
whether it could reveal to its customers that it was turning over records.
Yusill Scribner, a spokeswoman for the U.S. Attorney's office, said the
government had no immediate comment on the ruling.
In 2004, ruling on the initial version of the Patriot Act, the judge said
the letters violate the Constitution because they amounted to unreasonable
search and seizure. He found that the nondisclosure requirement - under
which an Internet service provider, for instance, would not be allowed to
tell customers that it was turning over their records to the government -
violated free speech.
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.
Marrero originally ruled in a case pertaining to an unidentified Internet
service provider that received one of the letters, in which the FBI claimed
that phone or Internet records were "relevant to an authorized investigation
to protect against international terrorism or clandestine intelligence
activities."
The ACLU complained that Congress' revision of the NSL law didn't go far
enough to protect people because the government could still order companies
to turn over their records, and remain silent about it, if the FBI
determined that the case involved national security.
The judge said the way the law was written "reflects an attempt by Congress
and the executive to infringe upon the judiciary's designated role under the
Constitution."
He added: "It is axiomatic that in our system of government it is the
province of the courts to say what the law is. When Congress attempts to
curtail or supersede this role, it jeopardizes the delicate balance of
powers among the three branches of government and endangers the very
foundations of our constitutional system."
--
NOTICE: This post contains copyrighted material the use of which has not
always been authorized by the copyright owner. I am making such material
available to advance understanding of
political, human rights, democracy, scientific, and social justice issues. I
believe this constitutes a 'fair use' of such copyrighted material as
provided for in section 107 of the US Copyright
Law. In accordance with Title 17 U.S.C. Section 107
"A little patience and we shall see the reign of witches pass over, their
spells dissolve, and the people recovering their true sight, restore their
government to its true principles. It is true that in the meantime we are
suffering deeply in spirit,
and incurring the horrors of a war and long oppressions of enormous public
debt. But if the game runs sometimes against us at home we must have
patience till luck turns, and then we shall have an opportunity of winning
back the principles we have lost, for this is a game where principles are at
stake."
-Thomas Jefferson
