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Judge: Patriot Act Threatens Constitutional System

Posted Sep 6, 2007 1:26 PM CDT
By Debra Cassens Weiss

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Warning of “potential dire effects to individual freedoms,” a federal judge in New York has struck down revisions to the USA Patriot Act for violating the First Amendment and restricting the power of the courts to rule on the constitutional issue.

The decision was a victory for the American Civil Liberties Union, which had challenged the revised law, the Associated Press reports.

The revisions gave the FBI the power to make case-by-case determinations whether companies may reveal they are turning over customer information to terrorism investigators in response to a national security letter. The FBI uses the letters to compel businesses such as Internet service providers, telephone companies and libraries to release customer information.

U.S. District Judge Victor Marrero said the revised law violated companies’ right of free speech because it gave the FBI wide discretion to determine when customers could be informed their information was being given to government investigators.

He said the government should be required to terminate a nondisclosure order within a reasonable time period or justify to a court why it must remain in effect.

Marrero also found that the law’s deferential standard for review of FBI secrecy orders did not give courts enough leeway to protect First Amendment concerns. The attempt to curtail judicial review threatens the balance of powers “and endangers the very foundations of our constitutional system,” he said in a passionate opinion released today (PDF posted by the New York Times).

“The Constitution was designed so that the dangers of any given moment would never suffice as justification for discarding fundamental individual liberties or circumscribing the judiciary’s unique role under our governmental system in protecting those liberties and upholding the rule of law,” he wrote.

If Congress had the power to direct courts what level of scrutiny to apply in constitutional challenges to legislation, he wrote, barriers to government abuse "could be severely compromised, and may eventually collapse, with consequential diminution of the judiciary’s function, and hence potential dire effects to individual freedoms.”

Marrero had ruled in 2004 that the previous law violated both the First and Fourth Amendments. After the law was revised, the New York City-based 2nd U.S. Circuit Court of Appeals directed Marrero to reconsider the constitutional questions. This time, the Fourth Amendment issue was not before Marrero.

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