A federal judge declared parts of the US Patriot Act unconstitutional yesterday. The bit that the judge took issue with was the section on the demand of personal records by the FBI without any form of judicial review, as long as the FBI could claim that they were investigating some sort of terrorist activity. This section of the law gave them free reign over any company records, and the judge ruled that the FBI’s National Security Letters (or NSLs) that demanded these records, amounted to illegal search and seizure, and were therefore entirely an illegal activity/request. The ACLU could not be happier with the ruling, and I think most people would agree that information security is a vital part of a democratic society. If the FBI really needs information, they have many legal outlets, and reasonable judges, like Judge Marrero will grant them subpoenas.
We really shouldn’t be too surprised – the system of checks and balances our founders set in place have been disregarded by this administration again and again, and the Congress has willingly helped establish some of the amendments for this disregard and abuse in their blindness induced from the efforts to protect the country. What isn’t understandable, is that the FBI would flout the rules they claim to be working for, namely a safe and democratic society. The FBI has many covert operations in the works, obviously – thats what they do. Why, if they want to disrupt the carefully crafted chain of checks and balances, would they do it out in the open? They have spies. Surely sending coercive letters out in the open is beneath them. But this is the problem with the Patriot Act. People in this country want to know they are defended, but they don’t want to know the details. And the Patriot Act allows all those spying activities to exist in the public arena, which make many people squirm uncomfortably. To most, no news is good news, and the less we hear, the more melodious it all sounds. So our democratic outlook is highly opportunistic, and not at all utopic, but in most cases, its has withstood time and worked (with some obvious glitches here and there). But when we give our intelligence organizations blank checks and blank law books or non-existent regulations, they feel comfortable enough to come out into the open, and demand things like these records. It seems counter intuitive actually, because if they don’t need to seek judicial approval, you would think they would do more covertly- but instead they issue memos and unabashedly demand information openly. And this is a problem. The FBI is supposed to be anything but open and decidedly forthright. If that was the case – they wouldn’t exist. So how do we square with all this? Search me.