September 6, 2007
National-Security Letters Ruled Unconstitutional
Count it as a win for academic librarians. A federal district judge today declared that national-security letters are unconstitutional. The controversial orders require businesses and organizations, possibly including libraries, to hand over to the FBI — without a judge’s approval — their electronic financial, subscriber, and other records. Recipients are barred from discussing the orders with anyone but their lawyers.
Academic-library groups, joined by the American Civil Liberties Union, have been fighting the idea in the courts and in Congress ever since the letters’ scope was expanded under the USA Patriot Act, the anti-terrorism law that took effect in 2001. In March lawmakers said they had revised the act, in part, to exclude libraries from receiving national-security letters, but library groups said they would still be able to receive the orders.
Judge Victor Marrero, of the U.S. District Court in Manhattan, ruled unconstitutional both the gag on recipients of the orders and their lack of judicial scrutiny. It was his second decision striking down national-security letters. Three years ago, he ruled that the orders violated the First Amendment. But an appeals court asked him to reconsider the decision after the Patriot Act was revised this year.
It is unclear if the U.S. Justice Department, which has been arguing in favor of national-security letters, will appeal the ruling.—Andrea L. Foster
Posted on Thursday September 6, 2007 | Permalink |Comments
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Good for Judge Victor Marrero! It’s encouraging to know that at least someone in this country still cares about the Constitution. Not that we’d expect anyone in the current administration to know what lettres de cachet were, but even in their abysmal pig-ignorance, they’re sure coming close to reviving a long-neglected technique. But Heimatssicherheit, I mean Homeland Security, and the Patriot Act do have a good side to them: we now have a much better understanding than formerly of what it was like to be a “good German” in 1933-1945.
— Dan Kirklin Sep 7, 08:34 AM #
I agree with the judge’s decision, too. Something does confuse me, though. I can see how ordering the recipients of the letters not to talk about them violates their First Amendment rights, but doesn’t the order to turn over the items in the first place violate their Fourth Amendment rights? I don’t believe that the rights of individuals against unlawful search and seizure can be circumvented just because the FBI says they can. In fact, that’s the reason for the amendment in the first place—to keep government from taking your person your property without probable cause. It has also been the norm to have probable cause reviewed by a judge. Taking the judiciary out of the process leaves the situation ripe for abuse.
— Tracy Sep 7, 09:58 AM #
If you read the decision, posted at the ACLU site, it states that only the gag order question was before the court. If I’m reading it correctly, the judge ruled it unconstitutional on two grounds. First, that it violated the first amendment. It gives the feds an opportunity to silence speech for content reasons indefinitely. Second, it rtuled that the way the revisions to the PATRIOT Act were enacted violated the separation of powers doctrine, because Congress gave the executive branch not just its oversight, but that of the courts, which they have no standing to do.
Though the judge apologizes in the decision for having to engage in a basic civics lesson, he justifies it because it’s not only important, it’s one the administration does not seem to have grasped. In fact, the document would be a nice text to use for Constitution Day because it so clearly explains basic principles underlying our system of government.
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