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Dead Constitution
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Title: Federal judge throws out parts of Patriot Act, says court's OK needed to get `Net records
Source: Associated Press
URL Source: http://www.presstelegram.com/ci_6817027
Published: Sep 6, 2007
Author: Associated Press
Post Date: 2007-09-06 11:39:58 by Brian S
Keywords: None
Views: 66
Comments: 2

NEW YORK - A federal judge struck down parts of the revised USA Patriot Act on Thursday, saying investigators must have a court's approval before they can order 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 American Civil Liberties Union had challenged the law, complaining that it 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.

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Yusill Scribner, a spokeswoman for the U.S. attorney's office, said prosecutors had no immediate comment.

Jameel Jaffer, who argued the case for the ACLU, 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.

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.

The ACLU complained that Congress' revision of the 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 law was written "reflects an attempt by Congress and the executive to infringe upon the judiciary's designated role under the Constitution," Marrero wrote.

Brian S  posted on  2007-09-06   11:42:14 ET  Reply   Trace   Private Reply  

The Second Circuit is likely to affirm this judge's holding. Meaning that, if it is to be reversed, it will have to be the Supreme Court that does it.

To reason, indeed, he was not in the habit of attending. His mode of arguing, if it is to be so called, was one not uncommon among dull and stubborn persons, who are accustomed to be surrounded by their inferiors. He asserted a proposition; and, as often as wiser people ventured respectfully to show that it was erroneous, he asserted it again, in exactly the same words, and conceived that, by doing so, he at once disposed of all objections. - Macaulay, "History of England," Vol. 1, Chapter 6, on James II.

aristeides  posted on  2007-09-06   11:47:21 ET  Reply   Trace   Private Reply  

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