Federal judge strikes down part of Patriot Act as unconstitutional

By Knight Ridder Newspapers and The Associated Press

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WASHINGTON — A federal judge yesterday ruled that a portion of the Patriot Act is unconstitutional, the first time one of the anti-terrorism law's controversial police-surveillance provisions has been struck down.

U.S. District Judge Victor Marrero said so-called national-security letters, which allow the FBI to demand that certain businesses hand over customer records without a judge's approval and without telling anyone, violate the First and Fourth amendments.

In his ruling, the judge called national security of "paramount value" and said the government "must be empowered to respond promptly and effectively" to threats. But he called personal security equal in importance and "especially prized in our system of justice."

He noted that the Supreme Court recently said that a "state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

"Sometimes a right, once extinguished, may be gone for good," Marrero wrote.

The American Civil Liberties Union had filed the lawsuit challenging the national-security letters on behalf of an Internet firm referred to only as John Doe. The group hailed the decision yesterday as a "landmark."

"It's a stunning victory against the Ashcroft Justice Department," ACLU Executive Director Anthony Romero said.

Justice Department spokesman Mark Corallo said only that the decision was being reviewed.

National-security letters are one of the more controversial provisions of the Patriot Act, which provided law enforcement with sweeping new police and surveillance powers after the Sept. 11, 2001, terrorist attacks.
 
The government has been able to seek communications records from companies such as Internet service providers and telephone companies without a judge's permission since 1996. But the Patriot Act expanded those powers.

Critics were deeply troubled by the law's broad gag order, which barred the recipient of a national-security letter from telling anyone he or she had received it.

The judge said the law violates the Fourth Amendment because it bars or deters any judicial challenge to the government searches, and violates the First Amendment because its permanent ban on disclosure is a prior restraint on speech.

National-security letters are so secretive that the ACLU was forced to keep its lawsuit under wraps at first. The Justice Department has refused to provide any data on how frequently national-security letters are used.

Justice Department lawyers have maintained that nothing in the gag order prevents the recipient of a national-security letter from seeking the advice of a lawyer or challenging the letter before a judge if they choose.

But Marrero said most ordinary citizens would be scared into compliance by a letter "framed in imposing language on FBI letterhead" accompanied by a stern warning to keep the government's demand secret.

"Objectively viewed, it is improbable that an FBI summons ... phrased in tones sounding virtually as biblical commandment, would not be perceived with some apprehension by an ordinary person and therefore elicit passive obedience," Marrero wrote.

Marrero's ruling will not take effect immediately, allowing the government time to appeal.

The blow to the Patriot Act comes as Congress weighs giving federal agents additional police powers to fight terrorism as part of legislation revamping U.S. intelligence agencies.

It is the second time a federal court has ruled that a part of the Patriot Act violates the Constitution. A federal judge in Los Angeles held that a part of the law that makes it a crime to provide material support to terrorists in the form of assistance or advice was overly broad. The government is appealing that decision.