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Judge Again Throws Out Portion Of Patriot Act

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By DAN EGGEN, The Washington Post

Published: September 7, 2007

WASHINGTON - A federal judge on Thursday struck down portions of the Patriot Act as unconstitutional, ordering the FBI to stop issuing 'national security letters' that secretly demand customer information from Internet providers and other businesses.

U.S. District Judge Victor Marrero in New York ruled that the antiterrorism law violates the First Amendment and the Constitution's separation of powers provisions because it effectively prohibits recipients of the FBI letters from revealing their existence and does not provide adequate judicial oversight of the process.

Marrero's 106-page ruling said Patriot Act provisions related to the letters are 'the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values.'

The decision has the potential to eliminate one of the FBI's most widely used tactics.

The letters allow agents in counterterrorism and counterintelligence investigations to secretly gather Americans' phone, bank and Internet records without a court order or grand jury subpoena. Although the FBI has had such power for many years, the Patriot Act, enacted in October 2001, significantly expanded its ability to issue the letters.

Marrero wrote that 'in light of the seriousness of the potential intrusion into the individual's personal affairs and the significant possibility of a chilling effect on speech and association, particularly of expression that is critical of the government or its policies, a compelling need exists to ensure that the use of NSLs is subject to the safeguards of public accountability, checks and balances, and separation of powers that our Constitution prescribes.'

He ruled that only some of the provisions were unconstitutional but found that it was impossible to separate those provisions from other parts of the law. He therefore struck down the FBI's ability to issue the letters altogether.

Marrero delayed enforcement of his order for 90 days to give the government a chance to appeal. A Justice spokesman said the department is 'considering our options.'

The ruling marks the second time that Marrero has struck down the Patriot Act's NSL provisions. In 2004, the judge found the law unconstitutional because it silenced NSL recipients and gave them no recourse through the courts.

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