Patriot Act Provision Declared Unconstitutional

Various provisions of the Patriot Act offend the Constitution. Today, federal District Court Judge Ann Aiken focused on the Act's attempt to circumvent the requirement that warrants to search for evidence of suspected criminal activity must be based on probable cause. The Constitution prevailed (pdf).

The case arose out of the FBI's unfounded suspicion that Brandon Mayfield orchestrated a train bombing in Madrid. Mayfield's odyssey is chronicled in these TalkLeft posts. Mayfield brought a lawsuit that, among other things, asked the court to declare the Patriot Act unconstitutional.

Before the Patriot Act, the law allowed the government to obtain a surveillance order from the FISA court when it certified that the primary purpose of surveillance was the gathering of foreign intelligence information. A search primarily intended to uncover evidence of a domestic crime required a showing of probable cause. The Patriot Act authorized a FISA surveillance order when the the executive branch certified that a significant purpose of surveillance was foreign intelligence gathering, even if the surveillance primarily furthered an ordinary criminal investigation.

Judge Aiken identified the constitutional dilemma:

Significantly, a seemingly minor change in wording has a dramatic and significant impact on the application of FISA. A warrant under FISA now issues if "a significant purpose" of the surveillance is foreign intelligence. 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.

More ...

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.

Judge Aiken wasn't having it:

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.

FISA also does not require particularity. The Fourth Amendment prohibits the government from conducting intrusive surveillance unless it first obtains a warrant describing with particularity the things to be seized as well as the place to be searched.

Judge Aiken also concluded that the Patriot Act's authorization of unreasonably long (120 day) surveillance orders violated the Fourth Amendment.

Here's the good stuff:

Finally and perhaps most significantly, In re Sealed Case ignores congressional concern with the appropriate balance between intelligence gathering and criminal law enforcement. 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.

Score one for the Fourth Amendment.

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  • Display: Sort:
    Best and only good news today. (5.00 / 1) (#5)
    by oculus on Thu Sep 27, 2007 at 01:04:28 AM EST

    i wouldn't bet the rent money (5.00 / 1) (#6)
    by cpinva on Thu Sep 27, 2007 at 01:12:10 AM EST
    on those "original intent" justices actually buying into the concept of the 4th amendment being a restraint on government activity.

    Good stuff (none / 0) (#1)
    by manys on Wed Sep 26, 2007 at 08:45:46 PM EST
    I bet the jackboots are sorry they ever met this guy.

    Or... (5.00 / 2) (#4)
    by kovie on Wed Sep 26, 2007 at 11:58:18 PM EST
    They've pleased as punch because now this likely goes all the way to SCOTUS where they hope and expect it to be overturned on appeal and thus ultimately validates the Patriot Act and their twisted interpretation of the constitution.

    This ain't over yet by a long shot.


    Wow--simply WOW! (none / 0) (#3)
    by kovie on Wed Sep 26, 2007 at 11:55:15 PM EST
    Not being a lawyer myself, it seems to me that not only should the case against him be thrown out on a constitutional basis, but on a legal and procedural one as well, given what you've said about the case here, AND anyone involved in this attempted (and apparently nearly successful) framing of an apparently innocent man needs to have charges brought against them immediately.

    Of course, I'm sure that DoJ will move to have any such charges dismissed immediately on "states secrets" and "national security" grounds. But that shouldn't stop him and/or the court from suing them anyway. This is serious, serious stuff and it cannot be left unchallenged.

    And the scariest part is that even if it makes it all the way to SCOTUS, there is every chance that they'll rule in a way that only makes it easier for the government to do and get away with this in the future. Such shaky ground we walk on these days given the makeup of the courts (and the spinelessness of the Dems). Oy. Madison, Jay and even Hamilton are turning in their graves...

    He is lucky he wasn't "Padilla-ed" (none / 0) (#7)
    by lilybart on Thu Sep 27, 2007 at 12:42:22 PM EST
    This guy is so lucky he wasn't whisked away, never to be heard from again.

    I am not a laywer, but can't he sue the "independent" testing lab or bring a civil suit against the liars at the FBI?

    This ruling *was* the outcome of the civil case .. (5.00 / 1) (#10)
    by Peter G on Thu Sep 27, 2007 at 05:30:50 PM EST
    Despite the seemingly insumountable odds, Mayfield's criminal case was won a year or so ago by the Federal Public Defender's Office for the District of Oregon.  Fearless, relentless, brilliant, and dedicated public defenders.  They uncovered the FBI's fingerprint fraud and got all criminal charges dismissed.  Gerry Spence, the maverick champion of liberty from Jackson, Wyoming, then volunteered to handle Mayfield's civil case, suing the DOJ and the lab.  When they offered Mayfield $2 million, Spence (and Mayfield) refused to take the money without a stipulation that they could continue to pursue the claim for a "declaratory judgment" on the constitutionality of the PATRIOT Act provisions that were invoked against him.  That's the part of the case that led to yesterday's ruling.  Kudos due to Gerry Spence, as well as honor to Mayfield for fighting for everyone's rights and not just his own interest.

    Mad kudos.... (none / 0) (#11)
    by kdog on Fri Sep 28, 2007 at 04:58:33 PM EST
    Good call with the shout-outs Peter.

    And give it up for Judge Aiken.  Some still believe.


    Question for lawyers on "patriot" act (none / 0) (#8)
    by lilybart on Thu Sep 27, 2007 at 12:46:27 PM EST
    Could congress ammend it to say that ANY and ALL evidence found while illegally spying on an American citizen that is NOT directly related to a terror plot or membership in a terrorist group, be disallowed in court?

    Meaning, if they spy on an American without intent, you know, they were just listening to every call from Building X that day, whatever they discover is illegal for use in court.

    Wouldn't this make all these spy things less of a problem for citizens?

    I want NO spying without warrants, but we cannot seem to achieve that right now. I just want to know how to protect citizens civil rights in a creative way, since the masses are so frightened .

    Yes, Congress could do that ... (5.00 / 1) (#9)
    by Peter G on Thu Sep 27, 2007 at 05:16:50 PM EST
    And so could the U.S. Judicial Conference standing committee on rules of procedure.  But they won't.  Not a chance.