Thursday, September 27, 2007

The Fourth Amendment wins another round

U.S. District Judge Ann Aiken ruled Wednesday that two provisions of the USA Patriot Act - secret searches and wiretaps to gather criminal evidence instead if intelligence gathering - are unconstitutional. "For over 200 years, this nation has adhered to the rule of law - with unparalleled success," the judge wrote in her ruling. "A shift to a nation based on extra-constitutional authority is prohibited, as well as ill-advised."

It all started with a misidentified fingerprint in the wake of the Madrid train bombings in 2004, which led investigators to Brandon Mayfield, an attorney in Portland, Oregon and a convert to Islam. The FBI secretly searched his home and his office, and both were bugged.

Mayfield was wrongfully detained for two weeks. Eventually, the FBI apologized to the Portland man for their grievous error and settled the lawsuit he brought fir $2 million dollars. But Mayfield wasn't done. He challenged the act that authorized the searches and surveillance on the grounds that it violated civil liberties of Americans. The U.S. Attorney General's office asked that Mayfield's challenge be dismissed.

Judge Aiken declined the request, averring that the use of the Patriot Act to authorize secret searches and wiretaps to gather criminal evidence is in direct violation against the Fourth Amendment, which protects against unreasonable searches and seizures. She rebuked the U.S. Attorney, stating that the governments request amounted to "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."

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Mayfield's attorney, Elden Rosenthal, issued a statement on his behalf, praising Judge Aiken. In his statement, Mayfield said Judge Aiken "has upheld both the tradition of judicial independence, and our nation's most cherished principle of the right to be secure in one's own home."

A spokesman for the Justice Department would only say that the agency was reviewing the decision and declined further comment.

Garrett Epps, a Constitutional Law expert at the University of Oregon said that the Mayfield case shows that pushing the Partiot Act to the limit may backfire on the Bush administration.
"They've been so aggressive in their assertions of statutory and constitutional authority that it has alienated courts," Epps said. "Judges just don't trust them. The Bush administration has shot itself in the foot."

The ruling is not expected to have any immediate effect on enforcement, but if the Justice Department appeals, and the ruling is upheld, the impact could be far-reaching. Michael Greenberger, director of the Center for Health and Homeland Security at the University of Maryland called Aikin's analysis of the law "extraordinarily sound" and said that the governments bungling of the investigation that focused on Mayfield had opened the door for the challenge to the law by illustrating that the government is using the FISA court to bypass the Constitution.

Although the ruling was not expected to have any immediate effect on enforcement under the Patriot Act, it could have a major impact if it is appealed and upheld, said director of the Center for Health and Homeland Security at the University of Maryland."The high irony of this is that, if the government had never heard of Brandon Mayfield, they would not have this ruling today," Greenberger said. "They essentially got caught with their pants down."

Yesterdays ruling was the second major legal setback the administration has been dealt this month. In a New York court, the ACLU won a Patriot Act challenge on behalf of an internet service provider that received a "National Security Letter" demanding customer phone and computer records. The judge in that case ruled that the FBI must justify to a court the need for secrecy for "more than a brief and reasonable period of time."

One would think that the Justice Department wishes they had never heard of Brandon Mayfield. His case has been a humiliating embarrassment for the feds. Last year, the Justice Department's internal monitoring body chided the FBI for sloppy work in the case, citing the FBI's leap to judgment in connecting Mayfield to the Madrid bombings. That report said federal prosecutors and FBI agents "had made inaccurate and ambiguous statements to a federal judge to get arrest and criminal search warrants against Mayfield."

The Patriot Act was passed with little debate in the fervor and fear that gripped many in America and virtually everyone in Washington D.C. after the terrorist attacks of September 11, 2001. The law gave the feds the authority to search phone records, read email and expand the Treasury Departments regulation of financial transactions involving foreign nationals. The saw was renewed in 2005, and in August of this year, the Bush administration, by use of lies and manipulation, convinced a feckless congress to expand their specious powers further, allowign the government to listen in on foreign communications even when an American was a party. The expanded powers sunset next year - BUT - and this is the part they don't tell you, any investigations underway at the time of the sunset will continue for a full year after the law expires. As citizens call bullshit, Congress is said to be taking a closer look at the law and many, mostly Democrats, want to rein in the language that many consider casts too wide a net.