I'm sure glad that there are people besides right wing puppets, that
can and will protect our freedoms.

Judge strikes down secret government searches as unconstitutional

LARRY NEUMEISTER, Associated Press Writer
Wednesday, September 29, 2004


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(09-29) 18:28 PDT NEW YORK (AP) --

Declaring that personal security is as important as national security,
a judge Wednesday blocked the government from conducting secret,
unchallengeable searches of Internet and telephone records as part of
its fight against terrorism.

The American Civil Liberties Union called the ruling a "landmark
victory" against the Justice Department's post-Sept. 11 law
enforcement powers.

"Today's ruling is a wholesale refutation of excessive government
secrecy and unchecked executive power," said ACLU attorney Jameel
Jaffer.

U.S. District Judge Victor Marrero struck down a provision of the
Patriot Act that authorizes the FBI to force Internet service
providers and phone companies to turn over certain customer records.
The companies are then barred from ever disclosing the search took
place.

In his ruling, the judge called national security of "paramount value"
and said the government "must be empowered to respond promptly and
effectively" to threats. But he called personal security equal in
importance and "especially prized in our system of justice."

Marrero said his ruling blocks the government from issuing the
requests or from enforcing the non-disclosure provision "in this or
any other case." But the ruling will not immediately take effect to
allow for an appeal.

Megan L. Gaffney, a spokeswoman for the federal prosecutor's office in
Manhattan, said the government was reviewing the decision and had no
immediate comment.

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 as "John Doe." He had agreed to keep
the firm's identity secret to protect the FBI probe that led to the
search request.

Jaffer, the ACLU lawyer, said the government had turned over as part
of the lawsuit a six-page document showing it had obtained Internet or
telephone records dozens and possibly hundreds of times.

The government was authorized to pursue communications records as part
of a 1986 law. Its powers were enhanced by the Patriot Act in 2001.

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."