Federal judge calls secret government searches unconstitutional

NEW YORK -- In a blow to the Justice Department's post-Sept. 11, 2001, powers, a federal judge said the government's ability to conduct secret and unchallengable searches of Internet and telephone records violates the Constitution.

U.S. District Judge Victor Marrero on Wednesday struck down a USA Patriot Act provision that allowed the FBI to gather phone and Web customer records and then barred the service providers from ever disclosing the search took place.

While Marrero called national security of "paramount value" and said the government "must be empowered to respond promptly and effectively" to threats, he also called personal security equal in importance and "especially prized in our system of justice."

Attorney General John Ashcroft said Thursday that the Justice Department will probably appeal. He said he would study it upon his return to Washington but "it's almost a certainty it will be appealed."

"We believe the act to be completely consistent with the United States Constitution," he said at talks with European Union officials in the Netherlands.

Second judicial act

Marrero's decision is the second time that a judge has ruled unconstitutional part of the Patriot Act, a package of prosecution and surveillance tools passed shortly after the attacks of Sept. 11, 2001.

In January, a federal judge in Los Angeles struck down a section of the act that made it a crime to give "expert advice or assistance" to groups designated foreign terrorist organizations. The judge said the language was too vague, threatening First and Fifth Amendment rights.

American Civil Liberties Union attorney Jameel Jaffer called the latest ruling a "landmark victory, and "a wholesale refutation of excessive government secrecy and unchecked executive power."

Marrero said his ruling blocks the government from issuing new requests for phone and Internet records "in this or any other case," but delayed the injunction by 90 days to allow time for an appeal.

The judge said the law violates the Fourth Amendment because it bars or deters any judicial challenge to the government searches, and violates the First Amendment because its permanent ban on disclosure is a prior restraint on speech.

He noted that the Supreme Court recently said that a "state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

"Sometimes a right, once extinguished, may be gone for good," Marrero wrote.

Marrero issued his decision in favor of an Internet access firm identified in his 120-page ruling simply as "John Doe." He had agreed to keep the firm's identity secret to protect the FBI probe that led to the search request.

President Bush has been pushing Congress to renew all of the Patriot Act before it expires next year, arguing that it is one of law enforcement's best tools in preventing another catastrophic terrorist attack.

But the law has become a symbol to civil libertarians who say the Bush administration has gone too far in expanding security powers at the expense of privacy rights and individual freedom.

In a footnote to his ruling, Marrero cited words he had written two years ago in another case to warn that courts must apply "particular vigilance to safeguard against excess committed in the name of expediency."

"The Sept. 11 cases will challenge the judiciary to do Sept. 11 justice, to rise to the moment with wisdom equal to the task, its judgments worthy of the large dimensions that define the best Sept. 11 brought out of the rest of American society."

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On the Net:

Read the Doe v. Ashcroft ruling at: http://www.nysd.uscourts.gov/RulingsOfInterest.htm

Justice Department: http://www.usdoj.gov