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Judge says section of Patriot Act “offends” Constitutional principles

co-scales-and-flag-photobucket.jpg“Democracy abhors undue secrecy … an unlimited government warrant to conceal… has no place in our open society… – US District Judge Victor Marrero

At least one part of the revised USA Patriot Act of 2001 has fallen under a federal judge’s gavel in a ruling that requires a court approval before investigators can order internet providers to turn over customer records. The ruling is another blow to already beleaguered Bush administration and its anti-terrorist policies.

The USA Patriot Act of 2001 (revised in 2005) is a perpetually controversial package of anti-terrorist legislation that has been sharply criticized for its apparent violations of basic constitutional rights and civil liberties.

In a 120-page ruling, US District Judge Victor Marrero supported the American Civil Liberties Union contention that the government’s ability to demand records and use administrative subpoenas known as security letters without warrants or judicial review was a violation of free speech and individual rights. The letters under protest include a gag order that also prohibited businesses from disclosing that such demands were even made. Marrero said the law “substantially deters any judicial challenge.”

co-constitution-w-feather-pen.jpg“The law reflects an attempt by Congress and the executive to infringe upon the Judiciary’s designed role under the Constitution.

— US District Judge Victor Marrero

The verdict stems from an American Civil Liberties Union (ACLU) that challenged the legality of allowing federal investigative agencies to demand records with prior court approval. Marrero, of the Southern District of New York, said the Patriot Act “offends the fundamental Constitutional principles” that form the checks and balances and separation of powers. Marrero said government orders must be subject to “meaningful” judicial review.

“Under the mantle of secrecy, the self preservation that ordinarily impels our government to censorship and secrecy may be turned on ourselves as a weapon of self-destruction … secrecy’s protective shield may serve not as much to secure a safe country as to simply save face…”

— US District Judge Victor Marrero

Marrero said the revised Patriotic Act amounted to “unreasonable search and seizure” and violated free speech. Marrero ruled against the first version of the Patriot Act in 2004, and was asked by the 2nd Circuit Court of Appeals to review the constitutionality of the revised 2005 Patriot Act.

In essence, and upon review of an earlier ruling, Marrero said that tools such as NSL’s (national security letters) require a judicial order or grand jury subpoena. NSL’s are commonly used by the FBI and federal security agencies to force the release of otherwise private customer information from internet providers, telephone companies and even public libraries. This ruling, however, applies only to internet and e-mail providers.

“The law reflects an attempt by Congress and the executive to infringe upon the Judiciary’s designed role under the Constitution.

— US District Judge Victor Marrero

Arguing the winning ACLU position, Attorney Jameel Jaffer charged that the revised Patriot Act “wrongly” gave the FBI the authority to decide on its own, in the absence of court review, whether internet companies, designated as Electronic Communications Service Providers, could inform their clients of an investigation. The ACLU held that in approving the revised Patriotic Act, Congress failed to provide enough protections to the people when it prohibited service providers from informing clients when records are turned over to authorities.

The ACLU cites this ruling as a strong warning to the government about the tactics it is using in the fight against terror, and said the decision is a “refutation” of the government’s use of “excessive secrecy and unbridled power under the Patriot Act.”

Documents in this case showed that the government had censored some portions of the filings in the case, including a statement from a 1972 Supreme Court ruling that said government has a “tendency” to abuse its power in the name of domestic security.

This latest ruling will now move to appellate court. Earlier rulings issued this year in other U.S. courts supported the rights of “enemy combatants” to legally challenge their imprisonment and two other rulings in June refuted portions of the law regarding the criminality of providing material support to potential terrorists.


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