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New York Times - September 27, 2007
Judge rules provisions in Patriot Act to be illegal
By SUSAN JO KELLER
WASHINGTON, Sept. 26 — A federal judge in Oregon ruled Wednesday that crucial parts of the USA Patriot Act were not constitutional because they allowed federal surveillance and searches of Americans without demonstrating probable cause.
The ruling by Judge Anne L. Aiken of Federal District Court in Portland was in the case of Brandon Mayfield, a lawyer in Portland who was arrested and jailed after the Federal Bureau of Investigation mistakenly linked him to the Madrid train bombings in March 2004.
“For over 200 years, this nation has adhered to the rule of law — with unparalleled success,” Judge Aiken’s opinion said in finding violations of the Fourth Amendment prohibitions against unreasonable search and seizure. “A shift to a nation based on extraconstitutional authority is prohibited, as well as ill advised.”
The ruling is a new chapter in a legal battle that began after the Spanish police found a plastic bag with detonator caps in a van near the bombings, which killed 191 people and left 2,000 injured in the deadliest terrorist attack in Europe since World War II.
Initially, the F.B.I. found no match for the fingerprints. But after reviewing a digitally enhanced set of the prints, the agency identified 20 possible matches, including Mr. Mayfield.
Though Spanish officials had doubts about the match, federal agents began surveillance on him and his family, using expanded powers under the Patriot Act. Mr. Mayfield was jailed for two weeks before a federal judge threw out the case.
Mr. Mayfield, 38, who was born in Oregon and brought up in a small town in Kansas, converted to Islam in 1989. He was a lawyer in a child custody case for Jeffrey Leon Battle, who had been convicted of conspiring to aid the Taliban and Al Qaeda.
Mr. Mayfield said his religion and legal work had led investigators to be overzealous in connecting him to the Madrid plot.
Mr. Mayfield sued the government, which apologized and agreed to a $2 million settlement last November. The settlement included an unusual condition that freed the government from future liability with one exception. Mr. Mayfield was allowed to continue a suit seeking to overturn parts of the Patriot Act.
It was that suit on which Judge Aiken ruled Wednesday. Her opinion said the court recognized that “a difficult balance must be struck in a manner that preserves the peace and security of our nation while at the same time preserving the constitutional rights and civil liberties of all Americans.”
In examining the history of the Federal Intelligence Surveillance Act, the opinion discussed a change by Congress in October 2001, under the Patriot Act, that allows surveillance and searches if the government declares that “a significant purpose” of that activity is gathering foreign intelligence. In the past, such searches and surveillance had been allowed if “the purpose” was to obtain foreign intelligence.
Congress’s intent, the opinion said, was “to break down barriers between criminal law enforcement and intelligence gathering.” Judge Aiken said a practical effect of “a seemingly minor change in wording” was to allow the government to avoid the constitutional probable cause requirement.
“In place of the Fourth Amendment,” the judge wrote, “the people are expected to defer to the Executive Branch and its representation that it will authorize such surveillance only when appropriate.”
She said the government was “asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning.”…..
http://www.nytimes.com/2007/09/27/washington/27patriot.html?_r=1&oref=slogin
CNN - September 26, 2007
Federal judge rules 2 Patriot Act provisions unconstitutional
September 26, 2007 -- A federal court on Wednesday struck down two provisions of the Patriot Act dealing with searches and intelligence gathering, saying they violate the Fourth Amendment protection against unreasonable searches and seizures with regard to criminal prosecutions.
"It is critical that we, as a democratic nation, pay close attention to traditional Fourth Amendment principles," wrote Judge Ann Aiken of the U.S. District Court for the District of Oregon in her 44-page decision. "The Fourth Amendment has served this nation well for 220 years, through many other perils."
The Foreign Intelligence Surveillance Court of Review, set up to review wiretap applications in intelligence cases under the Foreign Intelligence Surveillance Act, or FISA, "holds that the Constitution need not control the conduct of criminal surveillance in the United States," Aiken wrote.
"In place of the Fourth Amendment, the people are expected to defer to the executive branch and its representation that it will authorize such surveillance only when appropriate."
The government "is asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. The court declines to do so," Aiken said.
The Justice Department was reviewing the decision, said spokesman Dean Boyd.
The ruling was a response to a lawsuit filed against the federal government by Brandon Mayfield, a Portland, Oregon, attorney who was wrongly arrested for alleged involvement in the 2004 Madrid train bombings.
The federal government later apologized to Mayfield and settled part of Mayfield's lawsuit for $2 million. But Mayfield was permitted to keep pursuing the portions of his lawsuit challenging the constitutionality of the Patriot Act.
Mayfield claimed in the suit that his home and law offices were secretly broken into by the FBI, his clients' files at his office were searched, his business and personal computers were secretly copied, his telephone was wiretapped and his home was bugged...
Aiken ruled that FISA, as amended by the Patriot Act, permits the government to conduct surveillance and searches targeting Americans without satisfying the probable-cause standard in the Fourth Amendment.
"Prior to the amendments [to FISA], the three branches of government operated with thoughtful and deliberate checks and balances -- a principle upon which our nation was founded," Aiken wrote.
But the Patriot Act, she said, eliminated "the constitutionally required interplay between executive action, judicial decision and Congressional enactment."
"For over 200 years, this nation has adhered to the rule of law -- with unparalleled success. A shift to a nation based on extra-constitutional authority is prohibited, as well as ill-advised," she wrote.
Aiken noted that FISA does not require that the subject of a search be notified, although the Fourth Amendment ordinarily does. In addition, she said, the Fourth Amendment requires particularity -- authorities seeking a search warrant, for example, must list what they are looking for and where they are looking for it…..
http://www.cnn.com/2007/US/law/09/26/patriot.act
Bill of Rights Defense Committee thanks Mayfield
We can thank Brandon Mayfield by continuing to work locally with allies to fight back against the PATRIOT Act, and all the other unconstitutional Department of Justice orders, signing statements, executive orders, and laws passed by Congress since 9/11 that have grossly infringed upon our Bill of Rights protections against governmental excess. Let's mark the anniversary of the PATRIOT Act on October 26 this year with assurance that our efforts to win back the Bill of Rights will prevail! (BORDC has a video documenting the FBI abuses of its PATRIOT Act-enhanced
NSL powers that you can show locally to stimulate public discussion. http://fbiunbound.org )
Restoration of habeas corpus, an end to warrantless wiretapping, and sharp curbs on National Security Letters are three issues before Congress right now. Let's show Brandon Mayfield that we will stand up for justice too!
Hope Marston
Bill of Rights Defense Committee
West Region Organizer
PO Box 51434
Eugene, OR 97405
PH: 541 683-1604
FX: 609 784-1604
hmarston@bordc.org
http://bordc.org
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