Federal Court Strikes Down Patriot Act Surveillance Power As Unconstitutional - Tilted Forum Project Discussion Community

Pacifier · 09-30-2004, 12:22 PM

Ding, Dong, the Patriot Act is dead

Quote:

NEW YORK - Saying that "democracy abhors undue secrecy," a federal court today struck down an entire Patriot Act provision that gives the government unchecked authority to issue "National Security Letters" to obtain sensitive customer records from Internet Service Providers and other businesses without judicial oversight. The court also found a broad gag provision in the law to be an "unconstitutional prior restraint" on free speech.

"This is a landmark victory against the Ashcroft Justice Department’s misguided attempt to intrude into the lives of innocent Americans in the name of national security," said ACLU Executive Director Anthony D. Romero. "Even now, some in Congress are trying to pass additional intrusive law enforcement powers. This decision should put a halt to those efforts."

The American Civil Liberties Union and the New York Civil Liberties Union, which brought a challenge to the law earlier this year, hailed the ruling as a signal blow to the current administration’s efforts to expand government surveillance powers in violation of the Constitution.

"Today’s ruling is a wholesale refutation of excessive government secrecy and unchecked executive power," said ACLU attorney Jameel Jaffer. "As this decision suggests, certain provisions of the Patriot Act should never have been enacted in the first place."

The ruling is the first to strike down any of the vast new surveillance powers authorized by the Patriot Act. In a 120-page decision, Judge Victor Marrero of the Southern District of New York struck down Section 505 of the law on the grounds that it violates free speech rights under the First Amendment as well as the right to be free from unreasonable searches under the Fourth Amendment.

Since filing the case, the ACLU has labored under a broad gag order under which the government sought at every turn to censor even the most innocuous, non-sensitive information about the case. (The ACLU created a special web page to display the types of information it was forced to ask the court to disclose publicly, online at www.aclu.org/gagorder)

The ACLU originally filed the lawsuit under seal to avoid penalties for violating the NSL statute’s broad gag provision. Similar gag provisions are attached to other controversial provisions of the Patriot Act, including Section 215, which the ACLU has challenged in another lawsuit. (For more information, go to www.aclu.org/section215)

"After laboring under a gag provision for months, it is an enormous relief to be able to tell the world just how dangerous and extreme this Patriot Act power is," said ACLU Associate Legal Director Ann Beeson. "As the judge recognized, the Patriot Act imposed a ‘categorical, perpetual and automatic’ gag on every person who received a National Security Letter, as well as their lawyers."

The court explicitly rejected the government’s increasing move toward secret and coercive investigatory tactics in the post-9/11 environment. In striking down the gag provision, the court said: "Under the mantle of secrecy, the self-preservation that ordinarily impels our government to censorship and secrecy may potentially be turned on ourselves as a weapon of self-destruction."

"This is an important victory and significant step in the efforts to dismantle the harmful aspects of the Patriot Act," said Arthur Eisenberg, Legal Director of the New York Civil Liberties Union, which joined the ACLU in bringing the challenge.

The ACLU noted that the Patriot Act provision was worded so broadly that it could effectively be used to obtain the names of customers of websites such Amazon.com or Ebay, or a political organization’s membership list, or even the names of sources that a journalist has contacted by e-mail.

The decision to strike down a key portion of the Patriot Act comes as Republican leadership in the House is trying to expand the Patriot Act. The ACLU said that Members of Congress should take the judge's concerns to heart as they consider the various proposals to expand law enforcement powers. House Republicans leaders, for example, included several Patriot Act-like powers in their intelligence reform bill that is currently being debated. And in the Senate, many expect law enforcement amendments to be offered to its pending bipartisan intelligence bill.

Judge Marrero’s decision enjoins the government from issuing National Security Letters or from enforcing the gag provision. The judge stayed his ruling for 90 days in order to afford the government an opportunity to raise objections in the district court or the Second Circuit Court of Appeal. Today’s case is Doe and ACLU v. Ashcroft et al., No. 04-CIV-2614. Attorneys in the lawsuit are Beeson and Jaffer of the ACLU and Eisenberg of the NYCLU. The court’s ruling is online at http://www.aclu.org/SafeandFree/Safe...ID=15543&c=262.

http://www.aclu.org/SafeandFree/Safe...ID=16603&c=282

This is the second time that a part of the Act was considered unconstitutional, now I would like to hear the people who claimed the Patriot Act was "a good thing"

Ustwo · 09-30-2004, 02:01 PM

This is from a blog, dunno if its accurate or not, but if it is, I'm amused.

Quote:

Mainstream Media Ruled Unconstitutional:
No, not really. But is it too much to ask that when the mainstream media reports on court decisions that they properly identify the law that is struck down and the Administration that is rebuked? Apparently it is, at least if the Thursday morning papers are any guide.

As I noted in my post below, a recent decision of the Southern District of New York struck down part of a 1986 law known as the Electronic Communications Privacy Act. How does the press report the decision? No mention of the 1986 law, of course. Instead, the press is reporting that the court struck down a major part of the Patriot Act, in a blow to the Bush Administration's overzealous response to terrorism. As I trace the history of the statute, this is quite inaccurate: the basic law was implemented in 1986, almost 20 years ago. To be fair, the Patriot Act did amend some language in this section; just not in a relevant way. As best I can tell, the court's decision does not rely on or even address anything in the Patriot Act. (See page 14-22 of the Court's opinion for the details of the statute's history.)

But of course you don't get that from the mainstream press, which likes to report everything related to terorrism as if it were the Patriot Act. Here is the New York Times:

Judge Strikes Down Section of Patriot Act Allowing Secret Subpoenas of Internet Data
By JULIA PRESTON
A federal judge struck down an important surveillance provision of the antiterrorism legislation known as the USA Patriot Act yesterday, ruling that it broadly violated the Constitution by giving the federal authorities unchecked powers to obtain private information. The ruling, by Judge Victor Marrero of Federal District Court in Manhattan, was the first to uphold a challenge to the surveillance sections of the act, which was adopted in October 2001 to expand the powers of the federal government in national security investigations. The ruling invalidated one piece of the law, finding that it violated both free speech guarantees and protection against unreasonable searches. It is thought likely to provide fuel for other court challenges.

The Washington Post goes out of its way to construe the decision as a rebuke to the Bush Administration:

Key Part of Patriot Act Ruled Unconstitutional
By Dan Eggen
A federal judge in New York ruled yesterday that a key component of the USA Patriot Act is unconstitutional because it allows the FBI to demand information from Internet service providers without judicial oversight or public review. The ruling is one of several judicial blows to the Bush administration's anti-terrorism policies in recent months. . . . Marrero's ruling is the latest setback in the courts for the Bush administration's terrorism policies, which civil libertarians and some lawmakers consider overly broad. The Supreme Court ruled in June that detainees held as "enemy combatants" may challenge their confinement through the U.S. courts. Two rulings by federal courts in California have also struck down portions of statutes making it a crime to provide "material support" to terrorists. . . . But the ACLU argues that Marrero's ruling is a warning to the government about some of its tactics in the war on terrorism. "This is a wholesale refutation of the administration's use of excessive secrecy and unbridled power under the Patriot Act," said Ann Beeson, an ACLU lawyer. . . .

Not to be outdone, the Associated Press offers a similar story (could it be that they are all reading from the same script?):

Judge blocks part of Patriot Act
NEW YORK (AP) — Declaring that personal security is as important as national security, a judge Wednesday blocked the government from conducting secret, unchallengeable searches of Internet and telephone records as part of its fight against terrorism. The American Civil Liberties Union called the ruling a "landmark victory" against the Justice Department's post-September 11 law enforcement powers.

Of course, many readers may consider the identity of the law at issue as a minor point; after all, the important thing is that the law was struck down, not whether it was a 1986 law or a 2001 law that was at issue. But I think the label matters, actually, and that it matters a lot: the mainstream media has created a monster called the Patriot Act that has millions of Americans terribly worried about the government in general and the Bush Administration in particular. The early reports are trying to view this ruling as a rebuke to antiterrorism strategies of the Bush Administration, but that's just not accurate: if anything, it is a rebuke to the antiterrorism strategies of the Reagan Administration.

http://volokh.com/

seretogis · 09-30-2004, 02:42 PM

Didn't the Patriot act have bipartisan support? :P Sounds like a win for the Liberty-minded, to me.

cthulu23 · 09-30-2004, 03:42 PM

Unfortunately the Patriot Act did have bipartisan support. It's nice to see that the judiciary isn't as willing to erode the civil liberties of American citizens quite as much as our leaders are.

Kadath · 09-30-2004, 05:44 PM

Quote:

Originally Posted by seretogis

Didn't the Patriot act have bipartisan support? :P Sounds like a win for the Liberty-minded, to me.

Amen, brother. Hooray for tupping liberty.

mjw · 09-30-2004, 08:28 PM

Well this is fine and dandy, but all articles mentioned above are pretty much cookie cutter replicas of each other. Now don't get me wrong, the New York Post, Washington Post etc. are all great sources of news, but when the articles all sound so much alike , and have a striking resemblance to a ACLU newsletter such as:

http://www.aclu.org/SafeandFree/Safe...ID=16603&c=282

I begin questioning the source. I don't see any legal documents or notes cited, or anything. But what am I saying? The press is never wrong is it (*ahem* Bush Service Records fiasco *ahem*)?

onetime2 · 10-01-2004, 05:04 AM

Just more evidence that the system works. Those screaming about the permanent loss of liberties due to the Patriot Act have been proved wrong. Like all legislation that pushes the limits of Constitutionality, this legislation was and is open to challenges and there are standard procedures for the modification or rejection of them.

Additionally, from my reading of it, the Act is not dead yet. The article virtually ignores the point that the questionable piece of the legislation can be fixed if there is an acceptance of judicial oversight to challenge the demand for information.

cthulu23 · 10-01-2004, 05:27 AM

Yes, the system works to a point, but that is no reason not to scream, complain and demand that the Patriot Act and other rankly unconstitutional pieces of legislation be struck down. We can't always trust the judiciary to make the right decision, after all. Bad laws equal bad laws no matter how many safety nets we have to prevent their existence.

onetime2 · 10-01-2004, 06:03 AM

Quote:

Originally Posted by cthulu23

Yes, the system works to a point, but that is no reason not to scream, complain and demand that the Patriot Act and other rankly unconstitutional pieces of legislation be struck down. We can't always trust the judiciary to make the right decision, after all. Bad laws equal bad laws no matter how many safety nets we have to prevent their existence.

But they aren't "bad" laws until declared as such by the judiciary. Do you think it's possible that elements of the Patriot Act were already known to be destined for being struck down? Certainly everyone is aware of the time lag between passage of legislation and the eventual confirmation (or declaration of its unconstitutionality) by the Supreme Court. It's reasonable to me that drastic steps, recognized to be temporary, can and have been taken to insure the safety of US citizens.

Superbelt · 10-01-2004, 06:12 AM

Quote:

Originally Posted by seretogis

Didn't the Patriot act have bipartisan support? :P Sounds like a win for the Liberty-minded, to me.

Yep, Russ Feingold was the ONLY senator with enough guts to stand up against the Patriot act and vote against it.

Pacifier · 10-01-2004, 06:16 AM

Quote:

Originally Posted by onetime2

Just more evidence that the system works. Those screaming about the permanent loss of liberties due to the Patriot Act have been proved wrong.

Huh? Those who screamed bought down this law, how were they wrong? If noone screams nothing will chance and noone will realise that something is wrong.

onetime2 · 10-01-2004, 06:21 AM

Quote:

Originally Posted by Pacifier

Huh? Those who screamed bought down this law, how were they wrong? If noone screams nothing will chance and noone will realise that something is wrong.

First, it has not been brought down yet. If there are modifications made to it it may yet live.

Second, how can it possibly be permanent when you claim it's been struck down?

cthulu23 · 10-01-2004, 06:47 AM

Quote:

Originally Posted by onetime2

But they aren't "bad" laws until declared as such by the judiciary.

I can make my own judgements as to what constitutes a "bad" law, as can every other citizen of this country. Was "seperate but equal" a "good" legal precedent until Brown v Board of Education?

onetime2 · 10-01-2004, 06:52 AM

Quote:

Originally Posted by cthulu23

I can make my own judgements as to what constitutes a "bad" law, as can every other citizen of this country. Was "seperate but equal" a "good" legal precedent until Brown v Board of Education?

Do you claim to be able to ascertain, better than the Supreme Court, what violates the Consititution? I think I will rely on them to make that call thanks.

cthulu23 · 10-01-2004, 07:08 AM

Quote:

Originally Posted by onetime2

Do you claim to be able to ascertain, better than the Supreme Court, what violates the Consititution? I think I will rely on them to make that call thanks.

I never said that in any way shape or form, but feel free to ridicule me for it anyway. I am entitled to my opinion, however. Somehow I doubt that you, yourself, always reserve judgement on laws until the judiciary becomes involved and "transubstantiates" a good law into a bad one. I brought up "seperate but equal" as an example of bad judicial calls...were those who opposed the policy incorrect to question the validity of it simply because it had been upheld by a judge? Maybe I'm misunderstanding you here...

Rekna · 10-01-2004, 07:23 AM

Bipartisan support when it was passed is very iffy. It was passed in haste after a major disastor. This was during a time where anyone who questioned the president even slightly was considered unpatriotic and would have been roasted alive. It is sad that such a thing could happen. Hopefully people never let something like this happen again.

onetime2 · 10-01-2004, 07:51 AM

Quote:

Originally Posted by cthulu23

I never said that in any way shape or form, but feel free to ridicule me for it anyway. I am entitled to my opinion, however. Somehow I doubt that you, yourself, always reserve judgement on laws until the judiciary becomes involved and "transubstantiates" a good law into a bad one. I brought up "seperate but equal" as an example of bad judicial calls...were those who opposed the policy incorrect to question the validity of it simply because it had been upheld by a judge? Maybe I'm misunderstanding you here...

I absolutely do withold judgement on the legality of the laws. I am not a legal scholar and even legal scholars can not predict, in every case, how the Supreme Court will rule.

If you are offering only an opiniong of bad or good without any basis on the legality then I absolutely agree that you have every right to do so. That is not the case of the most vocal opponents of the Patriot Act. They have continually ridiculed the President (despite the bipartisan support pointed out in this thread) for trampling the Constitution and the like.

onetime2 · 10-01-2004, 07:56 AM

Quote:

Originally Posted by Rekna

Bipartisan support when it was passed is very iffy. It was passed in haste after a major disastor. This was during a time where anyone who questioned the president even slightly was considered unpatriotic and would have been roasted alive. It is sad that such a thing could happen. Hopefully people never let something like this happen again.

So it wasn't bipartisan support since the Dems were somehow alleviated of their responsibility to read, understand, and challenge if necessary the legislation put before them for a vote by the fact that there was a major disaster preceding it? If anything that's a reason to vote every one of the legislators (Democrats and Republicans) out of office who supported it and then, when they got around to reading the details, decided it was a "bad" law. We need our Representatives to be ready to stand up and be effective in the days, weeks, and months after a disaster. We do not need excuses later on about how they couldn't really come out against it because the atmosphere was tough. That's not leadership. That's protecting their chances for re-election at the expense of the country and it's unacceptable.

cthulu23 · 10-01-2004, 10:15 AM

Quote:

Originally Posted by onetime2

If you are offering only an opiniong of bad or good without any basis on the legality then I absolutely agree that you have every right to do so.

I have every right to think however I want regardless of how anyone else feels about it, but thanks for the okay anyway.

Quote:

That is not the case of the most vocal opponents of the Patriot Act. They have continually ridiculed the President (despite the bipartisan support pointed out in this thread) for trampling the Constitution and the like.

Hmmm, I thought your problem was with uninformed legal opinions...what does partisanship have to do with that? Anyway, all of those non legal scholars who foolishly decried the unconstitutionality of the Patriot Act have been partially vindicated. Good for them.

Sometimes it doesn't take a law professor to see an unconstitutional law.

onetime2 · 10-01-2004, 11:14 AM

Quote:

Originally Posted by cthulu23

I have every right to think however I want regardless of how anyone else feels about it, but thanks for the okay anyway.

Hmmm, I thought your problem was with uninformed legal opinions...what does partisanship have to do with that? Anyway, all of those non legal scholars who foolishly decried the unconstitutionality of the Patriot Act have been partially vindicated. Good for them.

Sometimes it doesn't take a law professor to see an unconstitutional law.

Yep and plenty of scholars thought that your earlier example of separation was completely Constitutional. Whatever.

cthulu23 · 10-01-2004, 11:41 AM

Quote:

Originally Posted by onetime2

Yep and plenty of scholars thought that your earlier example of separation was completely Constitutional. Whatever.

Which is an excellent example of how you can't always trust the system to fix things itself. Sometimes citizens have to get involved to change things, even if the thing needing fixing is public perception.

Complete trust in a system made up of humans is trusting in imperfection. This is why questioning one's government is an American virtue.

09-30-2004, 02:42 PM	#3 (permalink)
seretogis Huggles, sir? Location: Seattle	Didn't the Patriot act have bipartisan support? :P Sounds like a win for the Liberty-minded, to me. __________________ seretogis - sieg heil perfect little dream the kind that hurts the most, forgot how it feels well almost no one to blame always the same, open my eyes wake up in flames

10-01-2004, 05:04 AM	#7 (permalink)
onetime2 Junkie Location: NJ	Just more evidence that the system works. Those screaming about the permanent loss of liberties due to the Patriot Act have been proved wrong. Like all legislation that pushes the limits of Constitutionality, this legislation was and is open to challenges and there are standard procedures for the modification or rejection of them. Additionally, from my reading of it, the Act is not dead yet. The article virtually ignores the point that the questionable piece of the legislation can be fixed if there is an acceptance of judicial oversight to challenge the demand for information. __________________ Strive to be more curious than ignorant.

09-30-2004, 03:42 PM	#4 (permalink)
cthulu23 Banned	Unfortunately the Patriot Act did have bipartisan support. It's nice to see that the judiciary isn't as willing to erode the civil liberties of American citizens quite as much as our leaders are.

09-30-2004, 08:28 PM	#6 (permalink)
mjw Upright	Well this is fine and dandy, but all articles mentioned above are pretty much cookie cutter replicas of each other. Now don't get me wrong, the New York Post, Washington Post etc. are all great sources of news, but when the articles all sound so much alike , and have a striking resemblance to a ACLU newsletter such as: http://www.aclu.org/SafeandFree/Safe...ID=16603&c=282 I begin questioning the source. I don't see any legal documents or notes cited, or anything. But what am I saying? The press is never wrong is it (ahem Bush Service Records fiasco ahem)?

10-01-2004, 05:27 AM	#8 (permalink)
cthulu23 Banned	Yes, the system works to a point, but that is no reason not to scream, complain and demand that the Patriot Act and other rankly unconstitutional pieces of legislation be struck down. We can't always trust the judiciary to make the right decision, after all. Bad laws equal bad laws no matter how many safety nets we have to prevent their existence.

10-01-2004, 07:23 AM	#16 (permalink)
Rekna Junkie	Bipartisan support when it was passed is very iffy. It was passed in haste after a major disastor. This was during a time where anyone who questioned the president even slightly was considered unpatriotic and would have been roasted alive. It is sad that such a thing could happen. Hopefully people never let something like this happen again.