Judge rules against parts of Patriot Act

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

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

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

The ruling suggests that despite Congress' attempts to put the Patriot Act on firmer constitutional ground, it still faces significant legal challenges. If upheld on appeal, Marrero's decision could mean major new oversight of the FBI's use of a controversial investigative technique.

Since Sept. 11, 2001, the bureau has issued thousands of so-called national security letters to help build counter-terrorism and counterintelligence cases. The letters have become a popular tool at the bureau because they do not require court approval, and recipients have been prohibited from telling their customers that the data has been requested by authorities.

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


In his ruling, Marrero said the gag order on letter recipients violated the First Amendment. He also ruled that the process for issuing the letters undercut the role of the courts, in violation of the principle of separation of powers under the Constitution. Marrero, who struck down the Patriot Act once before, stayed his decision to give the Justice Department time to appeal.

"The risk of investing the FBI with unchecked discretion to restrict such speech is that government agents, based on their own self-certification, may limit speech that does not pose a significant threat to national security or other compelling government interest," the judge, who sits in New York, wrote in a 103-page ruling.

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."

He said he expected the government would fight the decision by Marrero, who was appointed to the federal bench by President Clinton.

National security letters -- first authorized by law in 1986 -- have become one of the FBI's bedrock investigative tools since Congress made them easier to issue as part of the original USA Patriot Act, enacted weeks after the attacks on New York and the Pentagon.

But they also have been criticized, even within the Justice Department.

In a report released in March, the department's inspector general found that many letters had been issued in violation of Justice Department rules and regulations. The watchdog office also found that the FBI's record-keeping system for the letters was in such disarray that reports to Congress understated by thousands the number of letters the bureau was issuing.

Thursday's ruling follows changes that Congress made last year in an effort to address a 2004 ruling by Marrero that found other problems with the security letters.


The original Patriot Act prohibited the phone companies and Internet providers in all cases from revealing the existence of a national security letter; Marrero found that patently unconstitutional.

Congress -- in legislation reauthorizing the Patriot Act last year -- changed the law to require that the FBI decide in each individual case whether disclosure would result in dangers to national security. The law was also changed to give recipients of the letters a limited right to challenge the gag orders in court, but required courts to accept as "conclusive" testimony of FBI officials that found secrecy was needed for national security reasons.

Marrero on Thursday said those standards were "overly deferential" to the government, and forestalled "meaningful judicial review."

He also said he was concerned that few phone companies and Internet providers had challenged the secrecy orders in court, and that barriers that the government had erected were such that it was not worth the time or expense to sue. The FBI issued more than 140,000 national security letters from 2003 to 2005, according to the opinion.

Marrero said the letters pose "profound concerns to our society," enabling the government to "unmask the identity of Internet users engaged in anonymous speech" or obtain itemized lists of individual e-mail accounts.

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