Judge throws out part of Patriot Act

WASHINGTON – A federal judge on Wednesday ruled a portion of the Patriot Act is unconstitutional, the first time one of the antiterrorism law’s controversial police surveillance provisions has been struck down.

U.S. District Court Judge Victor Marrero said so-called national security letters – which allow the FBI to demand certain businesses hand over customer records without a judge’s approval and without telling anyone – violate the First and Fourth amendments.

In a 122-page ruling, Marrero said personal security is equally as important as national security.

“Sometimes a right, once extinguished, may be gone for good,” the New York judge wrote.

The American Civil Liberties Union had filed the lawsuit challenging the national security letters on behalf of an Internet firm referred to only as John Doe. The group hailed the decision Wednesday as a “landmark.”

“It’s a stunning victory against the Ashcroft Justice Department,” ACLU Executive Director Anthony Romero said.

Justice Department spokesman Mark Corallo would say only the decision was being reviewed.

National security letters are one of the more controversial provisions of the Patriot Act, which provided law enforcement with sweeping new police and surveillance powers after the Sept. 11 attacks.

The government has been able to seek communications records from companies like Internet Service Providers and telephone companies without a judge’s permission since 1996. But the Patriot Act expanded those powers.

Critics were deeply troubled by the law’s broad gag order, which barred the recipient of a national security letter from telling anyone he or she had received it.

Marrero called the gag order “uniquely exceptional” and said it violated the First Amendment. He held the lack of judicial oversight violated the Fourth Amendment.

National security letters are so secretive the ACLU was forced to keep its lawsuit under wraps at first. The Justice Department has refused to provide any data on how frequently national security letters are used.

Justice Department lawyers have maintained nothing in the gag order prevents the recipient of a national security letter from seeking the advice of a lawyer or challenging the letter before a judge if they choose.

But Marrero said most ordinary citizens would be scared into compliance by a letter “framed in imposing language on FBI letterhead” accompanied by a stern warning to keep the government’s demand secret.

“Objectively viewed, it is improbable that an FBI summons … phrased in tones sounding virtually as biblical commandment, would not be perceived with some apprehension by an ordinary person and therefore elicit passive obedience,” Marrero wrote.

Marrero’s ruling will not take effect immediately, allowing the government time to appeal.

The blow to the Patriot Act comes as Congress weighs giving federal agents additional police powers to fight terrorism as part of legislation revamping U.S. intelligence agencies.

It is the second time a federal court has ruled a part of the Patriot Act violates the Constitution. A federal court judge in Los Angeles held that a part of the law, which makes it a crime to provide material support to terrorists in the form of assistance or advice, was overly broad. The government is appealing that decision.