Federal Judge Cock-Slaps PATRIOT Act Again

Judge Victor Marrero of the U.S. District Court for the Southern District of New York ruled today that the National Security Letter and accompanying judicial review provisions of the amended USA PATRIOT Act violates the First Amendment and the constitutional separation-of-powers precepts. The case, titled Doe v. Gonzales, has been going on for over three years.

The original version of the PATRIOT Act authorized the FBI to demand private information from internet service providers, financial and credit institutions, libraries, etc. without prior court approval by sending a “national security letter.” The Act also prohibited the NSL recipient from informing anyone about the government’s information demand, including the target of the demand. The Justice Department’s Inspector General reported earlier this year that over 143,000 such letters were were issued from 2003 to 2005.

A plaintiff identified only as John Doe filed suit in April 2004 along with the ACLU seeking a declaration that the Act’s NSL provisions were unconstitutional. Judge Marrero held the NSL provision unconstitutional in September of that year and the government appealed to the U.S. Court of Appeals for the Second Circuit.

While the appeal was pending Congress amended the PATRIOT Act, including the NSL provision. The amended version called for case-by-case determination of the propriety of secrecy, and authorized courts to set aside a nondisclosure determination if “there is no reason to believe” that disclosure would produce any of the harms enumerated in the Act. The court of appeals sent the case back to the trial court for reconsideration in light of the amendments.

Today Judge Marrero held that the “gag” provisions of the amended NSL fared no better than the original. The judge ruled that the statute constituted an unlawful content-based “prior restraint” on Doe’s rights under the Speech Clause of the First Amendment and that the Act didn’t provide the procedural safeguards mandated by Freedman v. Maryland, 380 U.S. 51 (1965).

The opinion truly shines in its discussion of checks and balances/separation of powers. The judge noted that prior restraints on protected speech are subject to “strict scrutiny” review in court. The amended Act limits that pretty severely limits that by imposing a “no reason to believe” test. Citing the odious examples Plessy v. Ferguson (“separate but equal”) and Korematsu v. United States (A-OK to indefinitely intern American citizens of Japanese descent during WWII), the judge warned of the consequences inherent in courts allowing other branches of government to encroach on the judiciary’s duty to interpret and enforce the Constitution:

These examples, however few in number, loom large in proportions of the tragic ill-effects felt in the wake of the courts’ yielding fundamental ground to other branches of government on the constitutional role the judiciary must play in protecting the fundamental freedoms of the American people. Viewed from the standpoint of the many citizens who lost essential human rights as a result of such expansive exercises of governmental power unchecked by judicial rulings appropriate to the occasion, the only thing left of the judiciary’s function for those Americans in that experience was a symbolic act: to sing a requiem and lower the flag on the Bill of Rights.

Beautiful! The judicial review provision being grossly inadequate under established First Amendment jurisprudence, it was every bit as unconstitutional as the NSL.

As is typical in these “national security” cases, the court stayed its ruling pending appeal. If the government doesn’t appeal (fat fucking chance), the stay remains in effect for ninety days.

The ACLU’s press release is available here and the opinion, all 106 pages of it, is available in .pdf here.

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