Congress, Read It This Time

Perhaps the creepiest provisions of the Patriot Act are those greatly strengthening the power of FBI agents to demand personal data on ordinary Americans from telephone and Internet companies, banks, libraries and bookstores.

In the name of fighting terror, agents can see who you’ve e-mailed or phoned, when and where you used your credit card, the books you read or the movies you like to rent. And if anybody at the bank or Internet company tells you that you’re under investigation, he or she will be staring at jail time. To open this information floodgate, government lawyers don’t have to convince a judge they have probable cause to suspect someone. They need only issue a national security letter after concluding that the information they want is “relevant” to a terror investigation, and no judge can challenge them.

But last week, a New York federal judge did. In a lawsuit filed by the American Civil Liberties Union on behalf of an Internet service provider, U.S. District Judge Victor Marrero declared that the government’s unchecked authority to issue national security letters -- a type of search warrant -- violated the Constitution’s free speech guarantees and protections against unreasonable searches. Though these letters were authorized in the mid-1980s, the Patriot Act gave the government greater discretion in issuing them for terrorist investigations, and their use has expanded exponentially. The sweeping nature of the requests for information -- the recipients of every e-mail an individual sent over the last year, for instance -- combined with what Marrero called the “coercive” threat that phone company officials could do jail time if they informed a customer, opened the door to intimidation and tempted federal agents to play their hunches more than ply shoe leather in terror probes.

The judge said he understood the government’s need to keep terror probes under wraps but warned that “secrecy’s protective shield may serve not as much to secure a safe country as simply to save face.”

Justice Department lawyers are considering whether to appeal. Whether or not they do, Marrero’s decision should push lawmakers to trim back the Patriot Act’s indefensible provisions instead of further expanding the breathtaking power they granted to law enforcement after 9/11. Three years ago, the massive anti-terror bill sped through Congress so fast that many lawmakers later admitted they didn’t read it. Yet they’re poised to compound that mistake.

House and Senate leaders have committed to quick passage -- read: before the election -- of a bill responding to the 9/11 commission’s recommendations to beef up domestic security. Sen. Jon Kyl (R-Ariz.) may introduce last-minute amendments that would further expand the Justice Department’s subpoena power, allow judges to deny bail in terror cases and dramatically expand the death penalty. We hope this time lawmakers will have their reading glasses and copies of the Constitution ready.