Topic: Patriot Act
"Landmark Decision" Striking Down Part of the Patriot Act Doesn't Go Far Enough The Associated Press is reporting that U.S. District Judge Victor Marrero ruled yesterday against the current version of the Patriot Act as revised by Congress in 2005. However, even this significant victory for individual rights falls short of what is finally needed.by Walt Thiessen
(libertarian)
Friday, September 7, 2007
The Associated Press is reporting that U.S. District Judge Victor Marrero ruled yesterday against portions of the current version of the Patriot Act as revised by Congress in 2005. However, even this significant victory for individual rights falls short of what is finally needed.
First, the good news according to the AP:
"Regarding the national security letters, he said, Congress crossed its boundaries so dramatically that to let the law stand might turn an innocent legislative step into 'the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values.'
He said the ruling does not mean the FBI must obtain the approval of a court prior to ordering records be turned over, but rather must justify to a court the need for secrecy if the orders will last longer than a reasonable and brief period of time.
A March government report showed that the FBI issued about 8,500 national security letter, or NSL, requests in 2000, the year prior to passage of the USA Patriot Act. By 2003, the number of requests had risen to 39,000 and to 56,000 in 2004 before falling to 47,000 in 2005. The overwhelming majority of the requests sought telephone billing records information, telephone or e-mail subscriber information or electronic communication transactional records."
Advocates of strict Constitutional interpretation justly celebrated this judge's ruling for having made a dent in the Patriot Act at all, but a copy of the ruling provided at the ACLU's website shows that there are significant problems with the judge's ruling that will probably come back to haunt us at some future point. Here are a couple of random examples from the ruling:
(1) Why doesn't Judge Marrero require in his ruling that the "FBI must obtain the approval of a court prior to ordering records be turned over"? Even after all the arguments have been made about this, I still don't see the justification. All the arguments that say that fighting the war on terror requires being able to act more quickly than can be done by seeking a Constitutionally mandated warrant are ridiculous. We live in the age of information, after all. Anyone who can plug a computer and a cable modem into a wall knows just how easily and quickly information can be exchanged, provided that you use appropriate technology. It only takes a matter of seconds, sometimes fractions of a second, when you have the proper tools. Surely, the problem isn't that a warrant can't be obtained quickly. Rather, the problem is that the current procedures for obtaining a warrant are bogged down in antiquated technologies and systems that can take hours, days, or in worst cases even weeks to complete.
The solution to this problem isn't to "bend" the Constitution to make it fit what the government and Judge Marrero want it to do. Instead, the solution is to streamline the warrant acquisition process. If our experience under the brief tenure of the Patriot Act so far has taught us anything, it has taught us that government investigators cannot be trusted to make appropriate decisions that protect individual rights during their investigations. Without judicial oversight, they will inevitably go too far. Anyone who has ever watched the TV program, "Law & Order" knows that much.
(2) The judge writes, "The context of counterterrorism investigations requires that the FBI have a degree of discretion in using NSLs to gather information about the targets of investigations and others who may be involved peripherally. Deference by courts to executive determinations of threats to 'national security' exists in part because evaluating such threats is not a precise science, and some flexibility is necessary in making such determinations in the first instance." He uses this argument as a defense for overturning the entire section of the Patriot Act he's discussing, rather than just fiddling with it. Nevertheless, the justification is deeply troubling. The fact that evaluating threats is not a precise science is precisely why a judge should always be consulted for direct scrutiny. It's not a valid justification for exactly the opposite conclusion.
Perhaps it is necessary to assign a judge full-time to judicially overseeing such investigations. That would be well worth the extra salary if a good judge with strong Bill of Rights credentials were given the task as a permanent assignment. It would no longer be necessary to parse and carve the Constitution and the Bill of Rights in order to empower investigators. It might be necessary to make the assignment a short-term one, to insure that a particular judge doesn't start getting lax in his duties out of sympathy for the day-to-day travails of the investigators. Judges, after all, are only human. But even if such were necessary, it would be a far less dear price to pay than the price Congress and the President want us to pay in the sacrifice they are demanding of our personal liberties.
Having pointed out these weaknesses in the ruling, however, I would be remiss if I ignored some of its prodigious strengths. The section from pp 61-78 is a ringing endorsement from the judge of what separation of powers is all about and what the roles of the three main branches of government are. Here are a few highlights:
"Hence, in the plan of the Constitution, Congress was expressly authorized to write the laws, and in furtherance of that task was granted control over the national purse. The president was empowered to enforce the law and protect the national security, and to those ends was bestowed command over the armed forces. And to the judiciary was delegated a duty that, on balance, was perhaps the most delicate responsibility of all: the power to say what, in the last analysis, the law is....
"In exercising that role as final arbiter of the structure and content of the law as it derives from the Constitution, though the judiciary cannot levy taxes or raise armies, the courts were entrusted as guardians of another vital national resource: the fundamental rights and liberties of the people. The success of judicial protection under this mandate depends upon ensuring that at all times the governmental system functions as ordered, that each branch remains within its proper contours in performing the duties assigned to it, and that none encoraches upon the provinces conferred upon the others....
"In this essential tenet, in maintaining the delicate checks and balance and separation of powers among its constituent branches at all times, rests the integrity and survival of our nation's form of government...."
The judge later does something a bit unusual, citing examples of where the courts ruled wrongly. He wrote:
"...The past is long, and so is the future we want to protect. But too often memory is short. The pages of this nation's jurisprudence cry out with compelling instances illustrating that, called upon to adjudicate claims of extraordinary assertions of executive or legislative or even state power...it opens the door to far-reaching invasions of liberty....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 ruling 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.
"To cite the teaching of one case, in 1944 the Supreme Court, amidst public passions wartime aroused, and under the mantle of national security and military expediency, endorsed the president's exercise of unilateral authority to relocate all Americans of Japanese descent (but not those of other nations also at war with the United States) to internment camps for the duration of the hostilities....Later, that ruling was much regretted not only for what it represented as a retreat from the judiciary's constitutional function in safeguarding American liberties and democratic principles, but for the potentially deleterious precedent it set of the courts' bowing unjustifiably to extraordinary actions of the other branches of the government....
This narrative sets a tone that strict Constitutionalists like myself have long craved of the judiciary, yet we have so often been denied. To see it in writing from a current U.S. judge gives me hope. The fact that it came from a judge appointed to the bench by a comparatively liberal president (Clinton) is a slap in the face of conservatives who claim that only conservative judges truly support strict Constitutional interpretation.
I have never read anything else by Judge Marrero, so for all I know this narrative of his may be an exception that will not likely be repeated. But at least on this day he hit some of the nails right on the head. I congratulate him for that, and I thank him.
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