NY Times editorial:The Wrong Balance

The Wrong Balance on Civil Liberties

Following the dastardly attacks of 9/11, it was evident that the nation had to do some careful thinking about the proper balance between national security and civil liberties. Instead of care and balance, sadly, the Bush administration immediately lunged to claim extraordinary, and largely unnecessary, new powers. Aided by a compliant Congress, the administration repeatedly tried to shield the resulting intrusions on people’s rights from meaningful scrutiny, even by the courts.

Recently, however, a federal district judge in New York declared unconstitutional one notorious outgrowth of the Bush team’s approach: the Federal Bureau of Investigation’s overreliance on informal demands for information, called national security letters, to obtain private records from telephone and Internet companies, banks and other businesses without a court warrant.

The decision by Judge Victor Marrero struck down 2006 revisions to the Patriot Act that expanded the bureau’s power to use national security letters, and a 1986 law that first authorized such letters. The recent provisions not only compelled companies to turn over customers’ records without a warrant, but forbade them to tell anyone what they had done, including the customers involved. The authority of the courts to review challenges to the gag rule was extremely limited.

Judge Marrero took proper umbrage at the attempt to tightly confine the courts’ authority and to silence recipients of national security letters without meaningful judicial review. He declared that the measure violated both the First Amendment and the principle of separation of powers. The deference that the law required courts to give to the executive branch, he stated, could amount to “the hijacking of constitutional values.”

This was not the first time the courts had tried to curtail this new power. Judge Marrero enjoined an earlier version of the law in 2004, and a federal judge in Connecticut did the same in 2005. But Congress, which was still under Republican control, responded with changes that only created additional constitutional flaws.

In the absence of oversight, the number of surveillance letters has mushroomed, and so have the abuses. A report issued last March by the Justice Department’s inspector general found that between 2003 and 2005, the F.B.I. issued an astonishing 143,000 requests using the letters, often in violation of the bureau’s own regulations, and sometimes in violation of the law. Three days after Judge Marrero’s ruling, Eric Lichtblau reported in The Times that the F.B.I. used the secret letters to obtain information not only on individuals it viewed as targets but also on people who came in contact with the targets.

Lawmakers in both parties have voiced disapproval of the F.B.I.’s abuse of national security letters. But they have not made a sustained push to fix the law that created this mess. Judge Marrero’s ruling should change that.