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The rule of law; Court upholds judicial oversight of FBI surveillance.


A federal judge's decision voiding certain domestic surveillance provisions of the Patriot Act is welcome. While investigators at the FBI and other agencies need rapid-response capability in the face of the ongoing threat of international terrorism, perusing people's e-mail and other private communications without judicial approval - or even after-the-fact review - is both unwarranted and abuse-prone.

At issue is a provision, passed last year in the revised Patriot Act, that allows the FBI to issue secret "national security letters" to compel telephone and Internet providers and other communications companies to turn over customer records without court approval. The law forbids the companies to inform customers, public officials, the press or any other parties that the records had been turned over.

The problem with the provision is not the nondisclosure element in itself. It should go without saying that publicizing such surveillance would almost certainly compromise the investigation.

However, the law also places strict limits on the ability of the courts to hear challenges to the disclosure ban. That effort to operate a secret surveillance program with minimal court oversight, even after the fact, seeks to negate the healthy checks and balances on the powers of the legislative, executive and judicial branches of government.

The secret surveillance also seems at odds with First Amendment rights and constitutional guarantees of due process and protections against unreasonable search and seizure.

Federal Judge Victor Marrero of the Manhattan district was overstating the case only slightly when he said he feared the revised Patriot Act might be the first in a series of intrusions on judicial responsibilities that would be "the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values."

In addition, the potential for abuse is clear. In March, the inspector general of the Justice Department reported that the FBI issued 143,000 national security letters from 2003 to 2005 - often improperly and sometimes illegally.

* * *

Even before the terrorist attacks of Sept. 11, 2001, FBI surveillance programs that sought to avoid judicial oversight were causing concern.

In 2000, the White House and Congress sought to ensure that the FBI and other law enforcement agencies, in order to intercept e-mail, first should be required to show probable cause for suspecting an individual has committed a crime - as is required for other communications. Investigators must show probable cause for tapping a telephone line, and the Cable Act of 1984 put in place strict surveillance criteria for cable modems.

The concern was prompted in part by revelations that the FBI had sophisticated technology, with the intimidating name Carnivore, that enabled it to monitor all the e-mail of all of an Internet provider's customers. The potential for massive fishing expeditions was and is all too clear.

In the wake of the Sept. 11 attacks, such concerns were put on hold. Nonetheless, only the most extraordinary of circumstances could justify interception of private communications by government investigators, absent reasonable judicial contraints.

Judge Marrero's ruling is a welcome step toward restoring balance between investigators' need for information and the public's interest in maintaining court oversight of such operations.

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Title Annotation:INSIGHT
Publication:Telegram & Gazette (Worcester, MA)
Date:Sep 9, 2007
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