Update: CNET provides a good discussion of what is at stake in the judicial decision discussed below, while Mithras (especially in the comments section) provides a reply to Kerr here. Meanwhile, the Boston Globe has in interesting article on the case here. The charm of the article is its discussion of how the "national security letters" at issue were allowed for awhile, but the Patriot Act expanded their reach. As Mithras notes, this is the core point, and the spin the other way is somewhat dubious.
At its core, the Pledge Protection Act tells the world that the Constitution does not mean what it says. The independent judiciary really isn't that independent after all. If the government doesn't like the way the courts may interpret the Constitution, it will take away their power to adjudicate constitutional claims. When the lone individual challenges government to its face to live up to constitutional guarantees, rather than meeting his arguments on the merits, government will change the rules of the game to deny dissenters their day in courts of national stature.
-- Vikram Amar and Alan Brownstein
I deleted yesterday's entry, tacking on the debate comments to Wednesday's post. I see a few people visited the blog after Thursday's post was tacked on, so let me explain. Mainly, I decided it was a bit too rough, especially as new info came in. Let me summarize with a few additions.
The piece was overall about the current fear of the courts. Some don't like them defending the rights of homosexuals, surely if marriage (or some aspects thereof) is involved. This got me into a sidebar of how "families" do include those of gay couples. As Lynn Johnson, the author of the comic strip "For Better or For Worse" said: "A family is a group of individuals who love, hate, trust, question, need, console, and depend on one another as they grow and mature and learn how to give a little more, take a little less ... all in the same environment, whatever or wherever it may be."
Then, I discussed the Patriot Act, which was rushed into law, and devilishly named -- if you oppose its provisions, are you not a patriot? Various aspects of the law expanded the government's powers, including weakening the powers of judicial review. The executive department alone, sometimes without congressional oversight, is to be trusted with various powers. The fact some of these powers existed in some form already was already troubling, though this was seen by some as suggesting the new changes weren't that bad.
My immediate reason for re-examining this old subject was a recent ruling (reported here and here, reporting criticized here) regarding one important aspect of such executive discretion. As the corrections to the press pieces note, the ruling ultimately was concerned with an older law, though one expanded (as noted by the decision, the criticism's implications aside) by the Patriot Act. It concerned the FBI officially requesting information from ISPs, unclear judicial review, and requirements to keep the requests secret.
I eventually read the opinion, slow download notwithstanding, and it seems sound. I found it held up well against Prof. Kerr's criticism. For instance, he suggests the there is a right to appeal. The decision spells out, including with cites of official testimony, why this very well might not be the case in practice. He also suggests the opinion didn't mention the Patriot Act, but this is not true, as I mentioned in an email. He replied that he meant the "decision" (what the case decided) did not, but I found his original comments misleading.
His blog is gleeful that the press (and ACLU) clarified their prior comments, but it is just a tad overblown. The basic point was that the Patriot Act was affected in a significant way. This is true at least in some degree because striking down the original provision affects the Patriot Act gloss broadening its reach. Ironically, Prof. Kerr himself suggests the opinion might require additional reliance on controversial aspects of the Patriot Act, though the judge probably would look at their application with skepticism.
But, the ruling of a single district judge on one aspect of the law is not really worth too much space here. I would hazard a guess that it did not require the over one hundred pages supplied by the judge. Still, it raised troubling First and Fourth Amendment issues, which users of the Internet should be concerned about. It not quite on the same level as torture or enemy detainees, but it was just one of many cases where the executive asked us to "trust them."
And, at some point, this just doesn't cut it. So, the judge's warnings about "9/11 justice" are worthwhile.