The same as ‘breaking and entering’

In New York last Thursday, U.S. District Judge Victor Marrero struck down that section of the USA Patriot Act which allows the FBI to secretly demand customer information from Internet service providers and other businesses without benefit of a court order or grand jury subpoena — again.

In 2004, the judge ruled that portion of the law unconstitutional because it imposed a rule of silence on recipients of such letters and gave them no recourse in the courts. Congress in 2005 passed new rules designed to answer the objections articulated by Judge Marrero at that time, but last week the judge said it still wasn’t good enough.

The anti-terrorism law — which has been used to order Las Vegas hotels to secretly hand over personal information on certain visitors — violates the First Amendment right of free speech and the Constitution’s separation of powers provision because it prohibits recipients of the letters from revealing their existence, and fails to provide adequate judicial oversight, Judge Marrero ruled.

The ruling seems to reach a bit far afield for its grounding — surely the Fourth Amendment’s ban on government agents violating the security of our “persons, houses, papers and effects” without a warrant issued “upon probable cause, supported by Oath or affirmation” would be more directly on point.

But the result remains both valid and laudable. No one wants to see the government crippled in its legitimate efforts to track down enemy spies and terrorists. But America has successfully prosecuted large-scale wars against far more fearsome enemies than a mob of suicidal Middle Eastern zealots without giving up those constitutional safeguards on our domestic liberties, which are the very things that make America special — the things we’re fighting to defend, in the first place.

The provisions he has again thrown out are “the legislative equivalent of breaking and entering,” the judge wrote, “with an ominous free pass to the hijacking of constitutional values.”

Judge Marrero delayed enforcement of his order for 90 days to give the government a chance to appeal. Will they?

In all likelihood, the first instinct of the administration — and make no mistake, the Clinton administration demonstrated precisely the same instinct — will be to follow one of three courses. The FBI will either seek a bogus new “clarification” from Congress which will have to be overruled in a couple more years, or they will appeal to a higher court, or they will simply ignore the ruling.

There is another path, though.

An audit earlier this year found the FBI may have violated even the current law or agency rules more than 1,000 times in recent years while using National Security Letters to collect data about domestic phone calls, e-mails and financial transactions. FBI agents are supposed to be considerably better trained and educated than Sheriff Taylor’s deputies, down in Mayberry. Would you be satisfied with that level of performance if these guys worked for you?

President Bush could unambiguously accept the chiding of the court, publicly re-confirm the pre-eminence of the Constitution and the liberties it safeguards, and vow that the battle against the Islamic murderers will still be won, even though his boys will now go back to obeying the Constitution, as ordered.

Couldn’t he?