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.

By Andrew Cohen |  September 5, 2007; 2:54 PM ET
Previous: The Craig Case, Simply | Next: Congress Should Fix the Patriot Act -- Again


Please email us to report offensive comments.

My sentiments exactly, kind regards to you, Mr.Cohen.

The ignorance and fear of decent americans will be exploited by folks this coming election cycle.

This decision is a mixed blessing!

Posted by: gil-roc | September 6, 2007 05:03 PM

Good piece on an important topic.

Posted by: Alex | September 6, 2007 05:30 PM

OF COURSE (!) administration assurances aren't good enough, for many reasons, their empirical track record just for one!

Posted by: Lou | September 6, 2007 05:34 PM

The "pay no attention to that man behind the curtain" defense finally peirced!

This is why is is so important for the Congressional investigations to continue. We need to pull back the curtain and shine the light of day upon the dark recesses of this corrupt administration.

Posted by: Nellie | September 7, 2007 10:31 AM

literally, the anal fissures, the septic crevasses

Posted by: | September 7, 2007 11:40 AM

Wake up Americans // SOC save our country. Demand our representatives work for us and stop illigal immigration.

Call Your Senators Today and Tell Them You Meant NO!

Despite the unprecedented outcry from the American people this summer, it appears the United States Senate still does not know--or has quickly forgotten--where the public stands on immigration. All signs from Capitol Hill indicate that amnesty backers are dead-set on passing the Bush-Kennedy Amnesty Bill (S.1639) piece by piece. They hope that by taking action while Congress is debating the Iraq War and other issues, the public will not see what steps they are taking to push their amnesty agenda.

This week, Senator Durbin is expected to offer the DREAM Act, which was part of the Bush-Kennedy Amnesty bill, as an amendment to the FY08 DOD Authorization Bill. There are numerous reasons to oppose the DREAM Act. First, the DREAM Act grants amnesty to illegal aliens who entered the U.S. before the age of 16 and have met certain educational requirements. Those who are granted amnesty under the bill may later on PETITION THE DEPARTMENT OF HOMELAND SECURITY TO GRANT THEIR PARENTS LEGAL STATUS. In addition, there is NO CAP on the numbers, NO AGE LIMIT on applicants, and the "conditional legal permanent resident status" they receive may be extended INDEFINITELY. Finally, the DREAM Act allows states to grant IN-STATE TUITION to illegal aliens.

Now is the time to act! Senator Durbin may offer his amendment as early as WEDNESDAY or THURSDAY of this week! Please call your Senators TODAY and urge them to reject the DREAM Act. Tell them a vote for the DREAM Act is a vote for amnesty and only rewards illegal alien parents with exactly what they wanted--legal status for their children and a U.S. education at taxpayer expense. Moreover, tell your Senators that when you told them you opposed the Bush-Kennedy Amnesty Bill, YOU MEANT IT and are upset they are trying to sneak provisions of it past the American people. Let them know that you are watching how they vote.

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