Congress and the President can't be trusted. Can the courts keep us free?

Recently, a Federal court struck down a Patriot Act regulation that had allowed the FBI to issue National Security Letters (NLSs) demanding private information about people within the United States without court approval, and to gag those who receive NSLs from discussing them. The court has ruled that the gag rule is unconstutional. The courts have also recently court found that secret searches of a "terror suspect's" house and office violated the Fourth Amendment's guarantee against unreasonable search and seizure.

Score two for the Bill of Rights.

Since the presidency, at least under the Republicans, and the Congress appear not willing and able to continue bothering to uphold the Constitution, perhaps we need to turn to the courts - as well as to mass movements - as among the only things left to keep us free and living under the rule of law.


Internet Business Law Service has a story that broke a few weeks ago.

NEW YORK - A federal court struck down the amended Patriot Act''s National Security Letter (NSL) provision. The law has permitted the FBI to issue NSLs demanding private information about people within the United States without court approval, and to gag those who receive NSLs from discussing them. The court found that the gag power was unconstitutional and that because the statute prevented courts from engaging in meaningful judicial review of gags, it violated the First Amendment and the principle of separation of powers.

U.S. District Court Judge Victor Marrero wrote, "In light of the seriousness of the potential intrusion into the individual''s personal affairs and the significant possibility of a chilling effect on speech and association - particularly of expression that is critical of the government or its policies - a compelling need exists to ensure that the use of NSLs is subject to the safeguards of public accountability, checks and balances, and separation of powers that our Constitution prescribes.

"As this decision recognizes, courts have a constitutionally mandated role to play when national security policies infringe on First Amendment rights. A statute that allows the FBI to silence people without meaningful judicial oversight is unconstitutional," said Jameel Jaffer, Director of the ACLU''s National Security Project.

NSLs may be used to obtain access to subscriber, billing or transactional records from Internet service providers; to obtain a wide array of financial and credit documents; or even to obtain library records. In almost all cases, recipients of NSLs are forbidden, or "gagged," from disclosing that they have received the letters, even to close family and friends. This has been a severe hardship on NSL recipients, who not only have been forced to keep this major event secret, but who have been prevented from meaningfully participating in public discussions about NSLs. The court today held that because the gag provisions cannot be separated from the entire amended statute, the court was compelled to strike down the entire statute. Recently, too, a federal district court struck down two search and surveillance provisions of the Patriot Act as unconstitutional.

This decision was also reported on in Wired which wrote

A federal district court judge struck down two key pillars of the Patriot Act Wednesday, ruling that using a secret spying court to wiretap and secretly search Americans' homes for criminal prosecutions violates the Constitution's protections against unreasonable searches and seizures.

Federal district court judge Ann Aiken struck down the government's ability to get orders from the secret spy court for anything other than acquiring foreign intelligence activities, saying that using that court and its lowered standards -- instead of getting a traditional criminal wiretap order -- violates the Fourth Amendment's ban on unreasonable searches and seizures. The ruling applies to Patriot Act changes to wiretapping laws and to so-called sneak-and-peak searches, where the government can search someone's home secretly and never have to disclose the search to the individual.

The ACLU commented on this, saying

The Fourth Amendment's probable cause requirement is one of the most important safeguards against an overreaching government. By allowing the FBI to conduct searches and wiretaps in criminal investigations without first demonstrating criminal probable cause, these Patriot Act provisions allow an end run around basic constitutional rules. There is no reason why the FBI can't investigate criminal activity - including terrorism - while at the same time complying with the Constitution."

The courts are thus, thankfully, chipping away at aspects of the Patriot Act, though perhaps it may be too little too late. But it is certainly better than nothing and worth celebrating as a victory for the Constitution.

Of course, the Patriot Act still allows some injustices and abuses of powers and these must be addressed by the courts. This includes such provisions as those that allow federal agents to "'shop' for judges that have demonstrated a strong bias toward law enforcement with regard to search warrants. It for the prosecution of those found to be offering "material support of terrorism," with groups labelled terrorist in such a sweeping manner that it could include just about anyone; giving support, for example, to the African National Congress, the anti-apartheid organization, a group labelled a terrorist organization by our government, could very well get a U.S. citizen arrested and sent to Gitmo. Alas, the Patriot Act still allows for indefinite detention upon secret evidence.

These provisions are all apparently indended to be sunsetted, though Bush's allies in Congress, led by Mitch McConnell and no doubt assisted by Lieberman and, likely, by some right wing Democratics, will try to extend it into law, indefinitely. Here, for example, is some classic McConnell dissembling

Unfortunately, some members of Congress have allowed the passage of time and the success of our efforts under the Patriot Act to dull their sense of urgency. Others have caved into the fears of a political base that has become increasingly radicalized in its opposition to anything the president supports. Two senators in particular have recently said they plan to block the full Senate from taking up a FISA reauthorization bill that was reported out of the Intelligence Committee last week with near-unanimous, bipartisan support.

Opponents of the reauthorization bill say they oppose it because it would give phone companies protection from lawsuits alleging they were wrong to share customer information with intelligence officials. This, despite the fact that U.S. businesses have always viewed sharing information to save American lives as being a patriotic duty they were only too happy to fulfill. Opponents also worry about an update that allows agents to listen in on phone calls that emanate from terror suspects abroad. But the Bill of Rights was never meant to cover terrorists in Diyala, Karachi, or Tehran.

Indeed, if there is any criticism at all with the proposed FISA reauthorization, it is that it does not go far enough. Most Americans have the common sense to recognize that FISA and every other tool we have used in this fight are worth making permanent. An open secret on Capitol Hill is that most Democrats do too. If there is one lesson from Sept. 11 that we should have learned by now, it is that the people who protect us from terrorism should have more, not fewer, tools to do their jobs. The Patriot Act and FISA are among the most valuable. It is time we acknowledged as much.
The Democrats, if they have spine for this, should prepare for an epic battle; since we cannot count on this, we need to look to the courts, which may be our best hope for restoring this country, right wing neo-fascictic activist judges, notwithstanding.

Internet Business Law Service has a story that broke a few weeks ago.

NEW YORK - A federal court struck down the amended Patriot Act''s National Security Letter (NSL) provision. The law has permitted the FBI to issue NSLs demanding private information about people within the United States without court approval, and to gag those who receive NSLs from discussing them. The court found that the gag power was unconstitutional and that because the statute prevented courts from engaging in meaningful judicial review of gags, it violated the First Amendment and the principle of separation of powers.

U.S. District Court Judge Victor Marrero wrote, "In light of the seriousness of the potential intrusion into the individual''s personal affairs and the significant possibility of a chilling effect on speech and association - particularly of expression that is critical of the government or its policies - a compelling need exists to ensure that the use of NSLs is subject to the safeguards of public accountability, checks and balances, and separation of powers that our Constitution prescribes.

"As this decision recognizes, courts have a constitutionally mandated role to play when national security policies infringe on First Amendment rights. A statute that allows the FBI to silence people without meaningful judicial oversight is unconstitutional," said Jameel Jaffer, Director of the ACLU''s National Security Project.

NSLs may be used to obtain access to subscriber, billing or transactional records from Internet service providers; to obtain a wide array of financial and credit documents; or even to obtain library records. In almost all cases, recipients of NSLs are forbidden, or "gagged," from disclosing that they have received the letters, even to close family and friends. This has been a severe hardship on NSL recipients, who not only have been forced to keep this major event secret, but who have been prevented from meaningfully participating in public discussions about NSLs. The court today held that because the gag provisions cannot be separated from the entire amended statute, the court was compelled to strike down the entire statute.

Recently, too, a federal district court struck down two search and surveillance provisions of the Patriot Act as unconstitutional.

This decision was also reported on in Wired which wrote

A federal district court judge struck down two key pillars of the Patriot Act Wednesday, ruling that using a secret spying court to wiretap and secretly search Americans' homes for criminal prosecutions violates the Constitution's protections against unreasonable searches and seizures.

Federal district court judge Ann Aiken struck down the government's ability to get orders from the secret spy court for anything other than acquiring foreign intelligence activities, saying that using that court and its lowered standards -- instead of getting a traditional criminal wiretap order -- violates the Fourth Amendment's ban on unreasonable searches and seizures. The ruling applies to Patriot Act changes to wiretapping laws and to so-called sneak-and-peak searches, where the government can search someone's home secretly and never have to disclose the search to the individual.

The ACLU commented on this, saying

The Fourth Amendment's probable cause requirement is one of the most important safeguards against an overreaching government. By allowing the FBI to conduct searches and wiretaps in criminal investigations without first demonstrating criminal probable cause, these Patriot Act provisions allow an end run around basic constitutional rules. There is no reason why the FBI can't investigate criminal activity - including terrorism - while at the same time complying with the Constitution."

The courts are thus, thankfully, chipping away at aspects of the Patriot Act, though perhaps it may be too little too late. But it is certainly better than nothing and worth celebrating as a victory for the Constitution.

Of course, the Patriot Act still allows some injustices and abuses of powers and these must be addressed by the courts. This includes such provisions as those that allow federal agents to "'shop' for judges that have demonstrated a strong bias toward law enforcement with regard to search warrants. It for the prosecution of those found to be offering "material support of terrorism," with groups labelled terrorist in such a sweeping manner that it could include just about anyone; giving support, for example, to the African National Congress, the anti-apartheid organization, a group labelled a terrorist organization by our government, could very well get a U.S. citizen arrested and sent to Gitmo. Alas, the Patriot Act still allows for indefinite detention upon secret evidence.

These provisions are all apparently indended to be sunsetted, though Bush's allies in Congress, led by Mitch McConnell and no doubt assisted by Lieberman and, likely, by some right wing Democratics, will try to extend it into law, indefinitely. Here, for example, is some classic McConnell dissembling

Unfortunately, some members of Congress have allowed the passage of time and the success of our efforts under the Patriot Act to dull their sense of urgency. Others have caved into the fears of a political base that has become increasingly radicalized in its opposition to anything the president supports. Two senators in particular have recently said they plan to block the full Senate from taking up a FISA reauthorization bill that was reported out of the Intelligence Committee last week with near-unanimous, bipartisan support.

Opponents of the reauthorization bill say they oppose it because it would give phone companies protection from lawsuits alleging they were wrong to share customer information with intelligence officials. This, despite the fact that U.S. businesses have always viewed sharing information to save American lives as being a patriotic duty they were only too happy to fulfill. Opponents also worry about an update that allows agents to listen in on phone calls that emanate from terror suspects abroad. But the Bill of Rights was never meant to cover terrorists in Diyala, Karachi, or Tehran.

Indeed, if there is any criticism at all with the proposed FISA reauthorization, it is that it does not go far enough. Most Americans have the common sense to recognize that FISA and every other tool we have used in this fight are worth making permanent. An open secret on Capitol Hill is that most Democrats do too. If there is one lesson from Sept. 11 that we should have learned by now, it is that the people who protect us from terrorism should have more, not fewer, tools to do their jobs. The Patriot Act and FISA are among the most valuable. It is time we acknowledged as much.

The Democrats, if they have spine for this, should prepare for an epic battle; since we cannot count on this, we need to look to the courts, which may be our best hope for restoring this country, right wing activist judges, notwithstanding.