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A Flawed USA Patriot Act

Editorial By Courant

September 17, 2007

A federal judge recently shined a light on deeply flawed provisions in the USA Patriot Act by ordering the FBI to stop using so-called national security letters to demand e-mails and telephone data from businesses without a warrant, court supervision or accountability.

In a strongly worded opinion that amounts to a rebuke of the Bush administration and Congress, U.S. District Court Judge Victor Marrero in New York said the FBI's use of the letters violates First Amendment guarantees of free speech and the constitutional separation of powers. Because the agency can impose indefinite gag orders - preventing a company from even confirming whether it has received a national security letter - the opportunity for judicial review is small, the judge found.

Such provisions are "the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values," Mr. Marrero wrote.

On a more practical level, the FBI's handling of these powers and the information has been a horror show. During a three-year period, the agency issued more than 140,000 letters. A federal investigation early this year exposed systemic instances of bumbling, abuse and lying by the FBI in the course of obtaining and using the data.

Few of the national security letters resulted in charges relating to terrorism or espionage; half of the targets were never prosecuted. The ones who were mostly got charged with fraud, immigration violations and money laundering.

"The risk of investing the FBI with unchecked discretion to restrict such speech is that government agents, based on their own self-certification, may limit speech that does not pose a significant threat to national security or other compelling government interest," Judge Marrero said.

Under provisions of the USA Patriot Act pertaining to national security letters, Americans appear to have given away a lot of their privacy for too little security. Judge Marrero has given the Justice Department 90 days to appeal his decision. We urge the Bush administration and Congress to tighten restrictions on the FBI's gag orders and expand oversight by the courts.