WASHINGTON — The Bush administration's war on terrorism suffered another legal setback Thursday when a federal judge struck down part of the revised USA Patriot Act.
U.S. District Judge Victor Marrero ruled that investigators eventually must get a court's approval when ordering Internet providers and phone companies to turn over records without telling customers.
The ruling suggests that despite Congress' attempts to put the Patriot Act on firmer constitutional ground, it still faces significant legal challenges. If upheld on appeal, Marrero's decision could mean major new oversight of the FBI's use of a controversial investigative technique.
In the six years since the Sept. 11 terrorist attacks, the bureau has issued thousands of national security letters to build counter-terrorism and counterintelligence cases. The letters have become a popular tool at the bureau because they do not require court approval, and recipients have been prohibited from telling customers that their data have been requested by authorities.
The Justice Department is expected to vigorously challenge Thursday's decision.
In his ruling, Marrero said the gag order on letter recipients violated the 1st Amendment. He also ruled that the process for issuing the letters undercut the role of the courts, in violation of the principle of separation of powers under the Constitution. Marrero, who struck down the Patriot Act once before, stayed his decision to give the Justice Department time to appeal.
"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," the judge, who sits in New York, wrote in a 103-page ruling.
Marrero said that the FBI may issue a temporary nondisclosure order without going to court, but that "within a reasonable and brief period of time" it must notify the recipient that the order is no longer in effect -- or else persuade a court of the need for continued secrecy.
Michael Woods, a former head of the FBI national-security law unit, said that if upheld, the ruling would "likely have the effect of making the NSL process so burdensome that the underlying tools are just not worth the trouble."
He said he expected the government would appeal the decision by Marrero, who was appointed to the federal bench by President Clinton.
