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Correction to This Article
A Sept. 30 article said that a federal judge in New York found a key component of the USA Patriot Act unconstitutional. At issue in the case was the Justice Department's use of "national security letters," a type of administrative subpoena that allows federal agents to demand records from businesses and prohibits the companies from revealing that the demands were made. While the Patriot Act loosened restrictions on the use of the letters, most of U.S. District Judge Victor Marrero's ruling focused on earlier statutes governing the letters.

Key Part of Patriot Act Ruled Unconstitutional

Internet Providers' Data at Issue

By Dan Eggen
Washington Post Staff Writer
Thursday, September 30, 2004; Page A16

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.

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In a sharply worded 120-page ruling, U.S. District Judge Victor Marrero found in favor of the American Civil Liberties Union, which filed a lawsuit on behalf of an unidentified Internet service provider challenging the FBI's use of a type of administrative subpoena known as a national security letter. Such letters do not require court approval and prohibit targeted companies from revealing that the demands were ever made.

Marrero, whose court is in the Southern District of New York, ruled that the provision in the Patriot Act allowing such letters "effectively bars or substantially deters any judicial challenge" and violates free-speech rights by imposing permanent silence on targeted companies. Writing that "democracy abhors undue secrecy," Marrero ruled that "an unlimited government warrant to conceal . . . has no place in our open society."

"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," Marrero wrote. ". . . At that point, secrecy's protective shield may serve not as much to secure a safe country as simply to save face."

The judge ordered the Justice Department to halt the use of the letters but delayed the injunction by 90 days to allow for an appeal. The government is reviewing its options, Justice Department spokesman John Nowacki said.

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.

The ultimate impact of Marrero's order is unclear. In addition to having time to pursue an appeal, the government will view the ruling as applying only to New York's Southern District in Manhattan, legal experts said. I. Michael Greenberger, a Clinton administration Justice Department official who teaches law at the University of Maryland, said Marrero's order is unlikely to have any effect until an appellate court rules.

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. "It's a very major ruling, in our opinion."

The secrecy surrounding the use of national security letters has had an unusual impact on the ACLU's lawsuit, which itself was initially filed in secret to comply with the Patriot Act, the controversial package of anti-terrorism measures approved by Congress after the Sept. 11, 2001, attacks. Documents in the case also revealed that the government had censored more than a dozen seemingly innocuous passages from court filings, including a direct quote from a 1972 Supreme Court ruling warning that government has a tendency to abuse its powers in the name of "domestic security."

Even now, the plaintiffs are barred from revealing which company filed the lawsuit. Marrero disclosed in his ruling that the FBI has issued hundreds of national security letters before and since the lawsuit was filed in April, but no precise figures have been released.

Beeson said Marrero's ruling applies only to national security letters related to Internet and e-mail service providers. Separate provisions of the Patriot Act also enhanced the government's ability to use such letters against financial and credit institutions.


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