Reining in the FBI.

Byline: The Register-Guard

Of the many excessive law enforcement powers in the USA Patriot Act approved after the attacks of Sept. 11, 2001, none has been more troublesome than a section that allows the FBI to secretly seize personal records about customers from Internet providers, phone companies, banks, libraries and other businesses without a judge's permission.

U.S. District Judge Victor Marrero struck down that retrograde provision last Thursday, ruling that it fails to provide meaningful judicial review and "offends the fundamental constitutional principles of checks and balances and separation of powers."

Congress was cravenly compliant in granting the FBI such sweeping powers, and the government has wielded its expanded authority with appalling irresponsibility. A report earlier this year by the Justice Department's inspector general, Glenn Fine, revealed that the FBI routinely used its power to issue national security letters without adequate oversight or justification. Ironically, the report came not long after Attorney General Alberto Gonzales testified before Congress that there had been no reported instances of Patriot Act powers being abused.

A 1986 law allowed the FBI to issue national security letters to obtain information such as financial data and telephone records without having to first obtain a court order. But the letters were rarely used because of appropriately strict limitations on their use.

The Patriot Act removed most of those restrictions, requiring only that the information sought be "relevant" to a terrorism or espionage case. Letters can be issued to obtain information not only on primary suspects in anti-terror cases, but also on individuals swept up in broad investigations. Companies are barred from telling customers or anyone else about the records requests. Searches require no judicial review and can be executed with the mere approval of the head of an FBI field office, although the inspector general's report revealed that letters were often signed by unauthorized FBI personnel.

The FBI has since announced new regulations aimed at ensuring that agents use the letters properly, but the new rules fail to address the underlying constitutional flaws identified in Thursday's ruling.

In his ruling, Judge Marrero said he fears the law could seriously undermine judicial authority, calling it "the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values."

That's not hyperbole. Between 2003 and 2005, the FBI issued more than 143,000 requests for information on more than 52,000 people - far more than the Justice Department initially reported to Congress. Tens of thousands of records were apparently obtained illegally.

Marrero also had appropriately harsh words for subsequent revisions approved by Congress that imposed new restrictions on the courts' ability to review the FBI's decisions on national security letters. "When the judiciary lowers its guard on the Constitution, it opens the door to far-reaching invasions of privacy," the judge wrote.

If the Bush administration appeals Marrero's ruling, as expected, Congress should find the spine it misplaced after Sept. 11 and limit the FBI's expanded powers under the Patriot Act.