- The Washington Times - Wednesday, September 29, 2004

A federal judge yesterday declared unconstitutional a portion of the USA Patriot Act that allows the FBI to demand a company’s confidential records without court approval.

U.S. District Judge Victor Marrero sided with an American Civil Liberties Union challenge by ruling Section 505 of the Patriot Act a violation of free-speech rights and unreasonable search-and-seizure protections.

The section made it legal for the FBI to obtain customer records from communication firms, specifically Internet service providers or telephone companies, by issuing a National Security Letter (NSL) to a given firm. That firm was then barred from ever disclosing it had received such a letter.

In a 122-page ruling, Judge Marrero, of the Southern District of New York, said the FBI’s use of NSLs without judicial review “violates the Fourth Amendment,” and that the “nondisclosure provision” of the law “violates the First Amendment.”

The judge ordered the government to stop issuing NSLs or applying the nondisclosure provision, but delayed enforcing the order pending appeal by the government in the next 90 days.

It was not clear yesterday the extent to which federal law enforcement authorities had been using NSLs in the war on terror. The ACLU, meanwhile, said it expects to win should the government appeal.

The Justice Department did not immediately comment on the ruling by Judge Marrero, an appointee of President Clinton. “We are reviewing the decision,” said spokesman Mark Corallo.

The FBI had power to issue NSLs prior to the Patriot Act’s passage in the wake of September 11. But they were limited to investigations of suspected terrorists or foreign spies, according to the ACLU, which argued the investigations had been expanded beyond the limits of constitutionality.

The ACLU and the New York Civil Liberties Union yesterday hailed the decision as a blow to Bush administration attempts to grow government surveillance powers in violation of the Constitution. “Today’s ruling is a wholesale refutation of excessive government secrecy and unchecked executive power,” said ACLU lawyer Jameel Jaffer.

ACLU Executive Director Anthony D. Romero said the ruling was “especially important” in light of efforts in Congress to further increase law enforcement powers by passing Patriot Act II.

“This decision should put a halt to those efforts,” he said.

In a statement, the ACLU also charged that House Republican leaders have included “several Patriot Act-like powers” in the intelligence-reform bill introduced last week, and that “in the Senate, many expect law enforcement amendments to be offered to its pending bipartisan intelligence bill.”

Yesterday’s ruling was the latest in a string of civil liberties victories over the administration’s tactics for fighting the war on terror. A Supreme Court ruling in June broadened legal rights of terror suspects held at U.S. Naval Base Guantanamo Bay, Cuba.

The high court also granted access to U.S. courts to Yaser Esam Hamdi, a U.S. citizen captured in Afghanistan. Mr. Hamdi was ordered last week to be released, after being detained nearly three years without charges.

On Monday, a Boston federal judge ordered the Justice Department to release a secret document it used to develop a new policy giving local police authority to check the immigration status of anyone suspected of lacking documents.

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