Editorial
Legal rights during the fog of terrorism

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Earlier this year came the Supreme Court cases on detention of "unlawful combatants," and last week came a lower-court ruling on the seizure of private records. Done carefully, these reviews are a good thing. Some of these powers were claimed at a time of high passion, and all such laws should be open to challenge.

In last week's ruling in Doe v. Ashcroft, Judge Victor Marrero of U.S. District Court in New York took an important step by invalidating part of the Electronic Communications Privacy Act of 1986. Under this law, as expanded by the Patriot Act of 2001, the FBI could demand a list of e-mail addresses with which a certain subscriber had corresponded, and Web pages visited. It could demand to read storede-mails.

Under the law, it didn't need a warrant to do these things. It needed only to fill out a National Security Letter saying that it was part of an investigation of spying or terrorism. No judge had to see this letter beforehand, nor could the person who received it take it to a judge and contest it.

Judge Marrero said this "essentially coerces the reasonable recipient into immediate compliance," which violates the Fourth Amendment rule against unreasonable searches.

The law forbade anyone who received such a letter from ever discussing it. The judge allowed that a gag order is sometimes necessary, but said it should specify to whom it applies and for how long.

This gag order was imposed automatically with no way ever to review it. That, said the judge, violated the First Amendment right of free speech. Indeed, the plaintiff, identified only as "Doe," had broken the law by talking to the American Civil Liberties Union.

The ACLU, which took Doe's case, discovered that the FBI had done hundreds of these warrantless searches since Sept. 11, 2001. Because the law went back to 1986, the judge said there "must have been hundreds more." He added, "Until now, none of those National Security Letters was ever challenged in any court."

From his courtroom not far from the site of the twin towers, Judge Marrero ruled that the Sept. 11 attacks had brought "an atmospheric pressure, a heavy weight that, fog-like, has loomed densely over every aspect of these proceedings."

Many Americans are still fearful and would want judges to leave the police alone. Judges have to be mindful of consequences, but their job is also to defend the Constitution.