A Small Glimmer of Light, a Small Victory for Freedom and Rule of Law

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."

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The ACLU had challenged the law on behalf of an Internet service provider, complaining that the law allowed the FBI to demand records without the kind of court supervision required for other government searches. Under the law, investigators can issue so-called national security letters to entities like Internet service providers and phone companies and demand customers' phone and Internet records.

In his ruling, Marrero said much more was at stake than questions about the national security letters.

He said Congress, in the original USA Patriot Act and less so in a 2005 revision, had essentially tried to legislate how the judiciary must review challenges to the law. If done to other bills, they ultimately could all "be styled to make the validation of the law foolproof."

Noting that the courthouse where he resides is several blocks from the fallen World Trade Center, the judge said the Constitution was designed so that the dangers of any given moment could never justify discarding fundamental individual liberties.

He said when "the judiciary lowers its guard on the Constitution, it opens the door to far-reaching invasions of liberty."

Regarding the national security letters, he said, Congress crossed its boundaries so dramatically that to let the law stand might turn an innocent legislative step into "the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values."

He said the ruling does not mean the FBI must obtain the approval of a court prior to ordering records be turned over, but rather must justify to a court the need for secrecy if the orders will last longer than a reasonable and brief period of time.

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.

Link.

And the more lucid version:

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."

Meanwhile, there's another victory!

Meanwhile, civil liberties groups notched another court victory in the fight against broad assertions of national security used to keep us in the dark. U.S. District Judge Henry Kennedy on Wednesday said that if the National Security Agency wants to withhold public documents about its warrantless wiretapping of American citizens, it needs to come up with a better excuse than “they’re secret.” Ruling in a Freedom of Information Act suit, Kennedy ordered the Justice Department to come up with some more substantial reasons for withholding the documents by Oct. 26. “While the court is certainly sensitive to the government’s need to protect classified information and its deliberative processes,” wrote Kennedy, “essentially declaring ‘because we say so’ is an inadequate method for invoking exemption.” To which we can only add, amen.