A recent decision by a U.S. district judge in New York is a welcome affirmation of the American constitutional scheme, which has — or should have — personal liberty as its core.
The judge struck down a provision of the Patriot Act that expanded the power of the FBI to force certain businesses to turn over records and then prohibit the businesses from telling anybody about it. The astounding thing is the administration — and Congress, which passed the Patriot Act at breakneck speed in the weeks after Sept. 11, 2001, without knowing much if anything about what was in it — ever thought such a provision was defensible.
The FBI has had the power to issue what are called “National Security Letters” seeking customer records from communications companies since 1986, but only if the subject was suspected of being a foreign spy. That power was expanded slightly to include people suspected of communicating with spies in 1994.
After 9/11, the Patriot Act expanded that power well beyond spies to include suspected domestic terrorists, and it might even have been used in ordinary criminal cases. We don’t know because the law prohibited those who received the letters from communicating that fact to anyone. This case had to be brought under “John Doe.”
U.S. District Judge Victor Marrero ruled the provision violates the Fourth Amendment — which sets out rules for search and seizure — because it doesn’t allow for judicial oversight or proper warrants. The prohibition on subjects of these National Security Letters ever talking about them also violates the First Amendment right to freedom of speech.
Robert Levy, a constitutional scholar at the Cato Institute, noted that the case might have more limited implications than some news stories suggested. “It applies only to Internet service providers, not to banks and financial institutions that also come under the law,” he said. “At this point, if Justice doesn’t appeal, it applies only in one district, not even in the entire circuit where it was brought. And it really applies to National Security Letters, which have been around since 1986. True, the Patriot Act expanded the instances where NSLs can be used and removed limitations on their use. But this decision was not precisely an invalidation of the Patriot Act per se.”
Even if it were limited in scope, this was the correct decision. Especially given that the “war on terror” is undefined and could be interpreted as never-ending, it is important to retain vigilance about personal liberties, which governments are inclined to want to limit in times of crisis. As Judge Marrero noted, quoting the recent Supreme Court decision regarding citizens declared “enemy combatants,” “a state of war is not a blank check for the president when it comes to the rights of the nation’s’ citizens.”
Whether this was a “landmark victory against the Ashcroft Justice Department,” as the American Civil Liberties Union, which brought the suit, declared, may be dubious. But it did demonstrate that some courts are willing to look hard at how the government has sought to expand its power in the wake of 9/11, and sometimes they get it right.
We will have a better idea whether that concern for American liberties is gaining traction when Congress decides whether to let the Patriot Act expire, as was the intention when it was passed, or renews it — perhaps with even more expansion of government power.