A Judge’s Patriotic Act



No, says Marrero. Hang up.

At least someone out there has a strong enough constitution to face down the government’s spying.

“Patriot Act” and “war on terrorism” were merely agitprop catchphrases crafted by the Bush regime to bamboozle Americans in the wake of 9/11.

Federal judge Victor Marrero, on the other hand, writes words to keep living by. Just as he did in 2004, the New York judge issued a ruling yesterday that struck down key provisions of the ill-named Patriot Act, halting — at least temporarily — the regime’s attempt to broaden its spying on Americans by using the “war on terrorism” pretext.

Your best chance of understanding Marrero’s decision in the aptly named Doe v. Gonzales case is to read Dan Eggen‘s story in the Washington Post. Unlike the Los Angeles Times version, for instance, Eggen’s account steers clear of agitprop phrases:

A federal judge struck down controversial portions of the USA Patriot Act in a ruling that declared them unconstitutional yesterday, ordering the FBI to stop its wide use of a warrantless tactic for obtaining e-mail and telephone data from private companies for counterterrorism investigations.

The ruling by U.S. District Judge Victor Marrero in New York said the FBI’s use of secret “national security letters” to demand such data violates the First Amendment and constitutional provisions on the separation of powers, because the FBI can impose indefinite gag orders on the companies and the courts have little opportunity to review the letters.

The secrecy provisions are “the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values,” Marrero wrote. His strongly worded 103-page opinion amounted to a rebuke of both the administration and Congress, which had revised the act in 2005 to take into account an earlier ruling by the judge on the same topic.

Although a government appeal is likely, the decision could eliminate or sharply curtail the FBI’s issuance of tens of thousands of national security letters (NSLs) each year to telephone companies, Internet providers and other communications firms. The FBI says it typically orders that such letters be kept confidential to make sure that suspects do not learn they are being investigated, as well as to protect “sources and methods” used in terrorism and counterintelligence probes.

The L.A. Times story, on the other hand, blindly uses the familiar agitprop phrases — “war on terrorism” instead of the better, more accurate word “counterterrorism.” And the story is written from the angle of a “setback” for the government:

The Bush administration’s war on terrorism suffered another legal setback Thursday when a federal judge struck down part of the revised USA Patriot Act.

U.S. District Judge Victor Marrero ruled that investigators eventually must get a court’s approval when ordering Internet providers and phone companies to turn over records without telling customers. …

The Justice Department is expected to vigorously challenge Thursday’s decision. …

Michael Woods, a former head of the FBI national-security law unit, said that if upheld, the ruling would “likely have the effect of making the NSL process so burdensome that the underlying tools are just not worth the trouble.”

Oh, the poor government.

If you have the time, read Marrero’s opinion or at least the ACLU press release about it.

For a good account of Marrero’s earlier decision, see my colleague Nat Hentoff‘s November 2004 account, “Cuffing Bush and the FBI.”