During his September 12 Newsradio 850 KOA show, Mike Rosen falsely asserted that the “constitutionality” of elements of the USA Patriot Act have “not successfully” been challenged in court. Rosen omitted the fact that a federal judge on September 6 struck down a key provision of the Patriot Act, ruling that the provision violated the First Amendment to the U.S. Constitution and the Constitution's “separation of powers” principle.

As the Associated Press reported in a September 6 article posted on The Denver Post's website, “A federal judge struck down a key part of the USA Patriot Act on Thursday in a ruling that defended the need for judicial oversight of laws,” and “handed the American Civil Liberties Union [ACLU] a major victory in its challenge of the post-Sept. 11 law that gave broader investigative powers to law enforcement.” According to a September 6 ACLU press release, the national security letter (NSL) provision of the amended Patriot Act that gave the FBI the power to “gag those who receive NSLs from discussing them” was found unconstitutional. The release also stated “that because the statute prevented courts from engaging in meaningful judicial review of gags, it violated the First Amendment and the principle of separation of powers.”

Rosen was addressing a caller who inquired about “why people believe” the Patriot Act violates “our constitutional rights.”

From the September 12 broadcast of Newsradio 850 KOA's The Mike Rosen Show:

ROSEN: Let's go to Littleton. [Caller], you are on Newsradio 850 KOA. Hello, [caller].

CALLER: How are you? Good morning, Mike.

ROSEN: Morning.

CALLER: I've listened to you for a long time and I've always wanted to call in and debate you sometime if I could ever come up with an issue that A) I disagree with you on, and B) I could make an intelligent argument. But since you're having open lines I thought I'd call in. And I've got a question that has bugged me for a long time. And it deals with the Patriot Act and where the concern is relative to our constitutional rights and why people believe that it does violate them. And, you know, just a general discussion on that, if I could.

ROSEN: Well, in any specific area where somebody thinks one element of the Patriot Act is a violation of the Constitution, their remedy is to go to court and challenge the constitutionality of it. That hasn't happened yet, at least not successfully.

Reporting on the ACLU's lawsuit, however, the AP noted that in striking down the NSL provision of the Patriot Act, U.S. District Judge Victor Marrero “said the Constitution was designed so that the dangers of any given moment could never justify discarding fundamental individual liberties.” According to the AP:

The ACLU had challenged the law on behalf of an Internet service provider, complaining that the law allowed the FBI to demand records without the kind of court supervision required for other government searches. Under the law, investigators can issue so-called national security letters to entities like Internet service providers and phone companies and demand customers' phone and Internet records.

In his ruling, Marrero said much more was at stake than questions about the national security letters.

He said Congress, in the original USA Patriot Act and less so in a 2005 revision, had essentially tried to legislate how the judiciary must review challenges to the law. If done to other bills, they ultimately could all “be styled to make the validation of the law foolproof.”

Noting that the courthouse where he resides is several blocks from the fallen World Trade Center, the judge said the Constitution was designed so that the dangers of any given moment could never justify discarding fundamental individual liberties.

He said when “the judiciary lowers its guard on the Constitution, it opens the door to far-reaching invasions of liberty.”

The AP further noted, “Marrero's lengthy judicial opinion, akin to an eighth-grade civics lesson, described why the framers of the Constitution created three separate but equal branches of government and delegated to the judiciary to say what the law is and to protect the Constitution and the rights it gives citizens.”

A September 7 article about the ruling in the Los Angeles Times similarly reported, “In his ruling, Marrero said the gag order on letter recipients violated the 1st Amendment. He also ruled that the process for issuing the letters undercut the role of the courts, in violation of the principle of separation of powers under the Constitution.” The Times also reported:

The ruling suggests that despite Congress' attempts to put the Patriot Act on firmer constitutional ground, it still faces significant legal challenges. If upheld on appeal, Marrero's decision could mean major new oversight of the FBI's use of a controversial investigative technique.

In the six years since the Sept. 11 terrorist attacks, the bureau has issued thousands of national security letters to build counter-terrorism and counterintelligence cases. The letters have become a popular tool at the bureau because they do not require court approval, and recipients have been prohibited from telling customers that their data have been requested by authorities.

In its press release, the ACLU noted that "[t]he law has permitted the FBI to issue NSLs demanding private information about people within the United States without court approval, and to gag those who receive NSLs from discussing them. The court found that the gag power was unconstitutional and that because the statute prevented courts from engaging in meaningful judicial review of gags, it violated the First Amendment and the principle of separation of powers." The press release added:

U.S. District Court Judge Victor Marrero wrote, “In light of the seriousness of the potential intrusion into the individual's personal affairs and the significant possibility of a chilling effect on speech and association -- particularly of expression that is critical of the government or its policies -- a compelling need exists to ensure that the use of NSLs is subject to the safeguards of public accountability, checks and balances, and separation of powers that our Constitution prescribes.

The AP article reported that Marrero ”immediately stayed the effect of his ruling, allowing the government time to appeal. Justice Department spokesman Dean Boyd said: 'We are reviewing the decision and considering our options at this time.' "