Dispatches from the Creation Wars

Key Provision of Patriot Act Struck Down

This is a very important ruling. Federal District Judge Ann Aiken struck down a key provision of the Patriot Act in a lawsuit filed by Brandon Mayfield, an attorney from Portland who was arrested and falsely accused of being a co-conspirator in the Madrid train bombings because the FBI misread his fingerprint.

Mayfield is an American citizen and a former officer in the Army who had not been outside the US since 1994. He’s also a Muslim, which clearly had an effect on how the case was handled. After the FBI mistakenly identified his fingerprint as belonging to one of the bombers, they did “sneak and peek” searches and installed bugs in Mayfield’s home and office, tapped their phones and obtained protected information from third parties.

It should be noted that throughout this process, the Spanish police had already caught the suspects in the case and they disagreed with the FBI that Mayfield’s prints were a match and they didn’t have any links to Mayfield whatsoever. The FBI got a FISA court warrant for a complete search; they even seized their children’s homework. Mayfield was arrested and placed in lockdown.

The issue in this case was whether the electronic surveillance and physical search provisions of the FISA law, which allows warrants to be issued for both without any showing of probable cause. Mayfield argued that without a showing of probable cause, any such search or seizure violates the 4th amendment. The text of the 4th amendment seems pretty clear:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Not much ambiguity there. It should also be noted that this was a facial challenge, not an as-applied challenge. Mayfield was not merely arguing that the law was unconstitutionally applied to him, but that it is unconstitutional on its face and must be struck down entirely. The judge describes the actual law and how it works:

Prior to the Patriot Act, the government was required to certify that the primary purpose of its surveillance was to obtain foreign intelligence information. The Patriot Act now
authorizes FISA surveillance and searches as long as a significant purpose of the surveillance and searches is the gathering of foreign intelligence. This amendment allows the government to
obtain surveillance orders under FISA even if the government’s primary purpose is to gather evidence of domestic criminal activity. The practical result of this amendment, objected to by plaintiffs, is that in criminal investigations, the government can now avoid the Fourth Amendment’s probable cause requirement when conducting surveillance or searches of a criminal suspect’s home or office merely by asserting a desire to also gather foreign intelligence
information from the person whom the government intends to criminally prosecute. The government is now authorized to conduct physical searches and electronic surveillance upon
criminal suspects without first proving to an objective and neutral magistrate that probable cause exists to believe that a crime has been committed. The government need only represent that the targeted individual was an agent of a foreign power (a representation that must be accepted unless “clearly erroneous”) and that “a significant purpose” of the surveillance and search is to collect foreign intelligence.

In other words, the Patriot Act amendments to FISA significantly lower the standards that the 4th amendment sets for obtaining a warrant. And here is how that has a real life impact:

Here, the government chose to go to the FISC, despite the following evidence: Mayfield did not have a current passport; he had not been out of the country since completing his military duty as a U.S. Army lieutenant in Germany during the early 1990s; the fingerprint identification had been determined to be “negative” by the SNP; the SNP believed the bombings were conducted by persons from northern Africa; and there was no evidence linking Mayfield with Spain or North Africa. The government nevertheless made the requisite showing to the FISC
that Mayfield was an “agent of a foreign power.” That representation, which by law the FISC could not ignore unless clearly erroneous, provided the government with sufficient justification to compel the FISC to authorize covert searches and electronic surveillance in support of a criminal investigation.

The judge’s words are eloquent and powerful:

Now, for the first time in our Nation’s history, the government can conduct surveillance to gather evidence for use in a criminal case without a traditional warrant, as long as it presents a non-reviewable assertion that it also has a significant interest in the targeted
person for foreign intelligence purposes.

Since the adoption of the Bill of Rights in 1791, the government has been prohibited from gathering evidence for use in a prosecution against an American citizen in a courtroom unless the government could prove the existence of probable cause that a crime has been committed. The hard won legislative compromise previously embodied in FISA reduced the probable cause requirement only for national security intelligence gathering. The Patriot Act effectively eliminates that compromise by allowing the Executive Branch to bypass the Fourth Amendment in gathering evidence for a criminal prosecution…

Thus, FISA now permits the Executive Branch to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment…

The FISA also allows the government to retain information collected, and use the collected information in criminal prosecutions without providing any meaningful opportunity for the target of the surveillance to challenge its legality. Nor does FISA require notice. The Fourth Amendment ordinarily requires that the subject of a search be notified that the search has occurred. Although in some circumstances the government is permitted to delay the provision of notice, the Supreme Court has never upheld a statute that, like FISA, authorizes the government to search a person’s home or intercept his communications without ever informing the person that his or her privacy has been violated. Except for the investigations that result in criminal prosecutions, FISA targets never learn that their homes or offices have been searched or that their communications have been intercepted. Therefore, most FISA targets have no way of
challenging the legality of the surveillance or obtaining any remedy for violations of their constitutional rights…

It is notable that our Founding Fathers anticipated this very conflict as evidenced by the discussion in the Federalist Papers. Their concern regarding unrestrained government resulted in the separation of powers, checks and balances, and ultimately, the Bill of Rights. Where these important objectives merge, it is critical that we, as a democratic Nation, pay close attention to traditional Fourth Amendment principles. The Fourth Amendment has served this Nation well for 220 years, through many other perils…

Moreover, the constitutionally required interplay between Executive action, Judicial decision, and Congressional enactment, has been eliminated by the FISA amendments. Prior to the amendments, the three branches of government operated with thoughtful and deliberate checks and balances – a principle upon which our Nation was founded. These constitutional checks and balances effectively curtail overzealous executive, legislative, or judicial activity regardless of the catalyst for overzealousness. The Constitution contains bedrock principles that the framers believed essential. Those principles should not be easily altered by the expediencies of the moment…

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 defendant here 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. This court declines to do so.

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.

Well said, your honor. This ruling will immediately appealed, of course, and a stay is almost inevitable. Unfortunately, the door is open for the appeals court to dodge the issue with an asinine standing argument. The government actually claimed in this case that Mayfield has no standing to sue because the harm to him already occurred and is over now. It’s a ridiculous argument, but don’t be surprised to see the appeals court, even in the 9th circuit, use that as a way of dodging the issue.