The Patriot Act Ruling in Context
Before anyone goes celebrating (or bemoaning) a federal trial judge's ruling Thursday that struck down a controversial provision of the revised USA Patriot Act, and without meaning to sound like the character Quint from the movie Jaws, let me just say that we are a long, long way from any sort of resolution to this matter. Years away, I predict.
As logical as the decision may seem to civil libertarians, it very well could be reversed by the 2nd Circuit Court of Appeals and, if it is not, by the United States Supreme Court, both of which are more conservative than is U.S. District Judge Victor Marrero. And even if those higher courts side with Judge Marrero, Congress can immediately dip back into this long-lasting dispute and tweak the law again to ensure that it passes constitutional muster. And since even a blind squirrel sometimes finds an acorn, it is conceivable that the lawmakers one day will get it right.
Since the terror attacks on America, there have been countless (well, I've lost track, anyway) examples of federal trial judges ruling against the Bush administration only to see their federal appeals courts overturn them. It happened in the Padilla case when the trial judge threw out the conspiracy charge against Padilla only to have it reinstated. It happened in the Moussaoui case when the trial judge thew out the death penalty onlly to see it reinstated.
It happened with respect to the Guantanamo Bay detainees on at least one issue (although the higher courts ultimately have been very kind to those men down there). It happened in Michigan in a challenge involving the government's domestic spy program. There is no reason, therefore, to be confident that it won't happen again here in this case. That's not to say that Judge Marrero's opinion is inconsistent with popular opinion or legal logic; it's just to say that I'll believe the national-security-letter provision is dead when I see it lying there on the floor in a pool of blood.
The irony, I think, is that the most important part of the ruling may end up being the one few will focus upon. Judge Marrero relied for its conclusions, in part, on the Office of Inspector General report made public earlier. That report blasted the feds for their use and abuse of National Security Letters to get around warrants and probable-cause findings when executing a "search" of a company's or person's "property." (You can read the report online here. ) In other words, the government's awful and awfully consistent record of overzealousness since 9/11 actually came back to bite the feds before Judge Marrero. No longer are administration reassurances-- trust us, we won't overreach-- good enough.
More tomorrow. Have a good night.
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