Remember the Constitution?

Well now. It isn't like we (meaning us DFH lefty bloggers) didn't tell you these bastards couldn't be trusted. We told you that if you gave them an inch they would take a mile. Sure enough, they decided to take two, since they're small.

Federal officials are routinely asking courts to order cellphone companies to furnish real-time tracking data so they can pinpoint the whereabouts of drug traffickers, fugitives and other criminal suspects, according to judges and industry lawyers.

In some cases, judges have granted the requests without requiring the government to demonstrate that there is probable cause to believe that a crime is taking place or that the inquiry will yield evidence of a crime.

These requests go against internal Justice Department recommendations that warrants be sought by federal prosecutors, based on probable cause. Because the orders are sealed at the request of the government, it is difficult, if not impossible to determine how often the orders are okayed or declined.

This month, a federal judge in Texas denied a request by a DEA agent for data that would identify the location of a suspected drug trafficker by the GPS chip in his cell phone. Magistrate Judge Brian L. Owsley did not just deny the request, he was scathing in his opinion, stating that the agent's affidavit failed to make the case and offer the "specifics necessary to establish probable cause, such as relevant dates, names and places."

Then the judge opted to publish his opinion and make it a part of the public record.

[Keep reading...]

In his opinion, he offered the details of the case, explaining in detail the shortcomings of the agents argument, in which the agent failed to provide "sufficient specific information to support the assertion" that the phone was being used to facilitate criminal activity.

The agent offered no substantiation of the allegation, instead merely arrogantly asserting that the suspect trafficked in narcotics and used the phone to do so. Owlesly wrote in his opinion that the agent simply stated that the agency had " 'determined' or 'identified' certain matters," but "these identifications, determinations or revelations are not facts, but simply conclusions by the agency."

Federal agencies are routinely applying for orders based on an absurdly low standard, when they should be seeking warrants based on probable cause.

And we warned you.

We told you that if you gave them special powers under the guise of "tracking terrorists" that in a New York minute they would be abusing their new, extra-Constitutional powers and going after Americans with them. We told you that if they were given a taste of that sort of power they would use it instead of shoeleather to prosecute criminal cases.

But instead of heeding our warnings, we were mocked, ridiculed and asked, in all seriousness, why we hated America and wanted the terrorists to win? And anyway, what did we have to hide? Hmmm?

This sort of thing might be right up some quivering, pissing coward's alley, but not mine. I actually give a rat's ass about the Constitution and liberty and freedom. I fear my government a hell of a lot more than I fear a few foam-flecked fundamentalists and their reich-wing enablers.

Extra-Constitutional powers granted to combat terrorism were quickly abused and misused by law enforcement to make criminal cases.

Next stop? Spying on political opponents.

Who is to say that isn't already happening?

It sure would explain the cowardice and spinelessness of a whole bunch of Democrats in congress.

I don't know about you, but the very first day that Congress is back in session, I will be calling all of my elected representatives and demanding a repeal of that un-American apostasy known as the Patriot Act.

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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.

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Judge says no to part of revised Patriot Act

U.S. District Judge Victor Marrero said telling an Internet service provider to turn over records without a judicial court order violates the separation of powers. The ACLU had challenged FBI-issued National Security Letters on precisely that grounds, in the lawsuit before Judge Marrero’s court.

This applies to the 2005-revised Patriot Act. Marrero had earlier struck down the NSL gag order provision in the original version of the Act as a free speech violation; the Second Circuit Court of Appeals directed him to hear the ACLU’s suit on the constitutionality of the act even as revised.

The law was written "reflects an attempt by Congress and the executive to infringe upon the judiciary's designated role under the Constitution," Marrero wrote.

A win’s a win.

Now, can we get Democratic presidential candidates to tell us what they are going to do to junk the Patriot Act — besides Kucinich, who’s already made that pledge?

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Score one for the Fourth Amendment!

Attention all in need of a little GOOD news...

Earlier today, U.S. District Judge Victor Marrero struck down the National Security Letters provision of [that apostasy known as] the 'Patriot' Act. The NSL provision has been abused by the FBI practically since before the ink was dry in the Resident's signature on the revised legislation.

In his ruling, Judge Marrero stated that investigators must have the approval of a court before ordering Internet service providers to turn over customer records without informing the customers.

Judge Marrero found that the government orders must be subject to "meaningful judicial review" and that the revised 'Patriot' Act "offends the fundamental constitutional principles of checks and balances and separation of powers."

The challenge to the law was brought by the American Civil Liberties Union, which argued that the provision allowed the FBI to demand sensitive personal information on American citizens without the sort of court order and oversight required for other types of Government searches.

Since Judge Marrero is a Clinton appointee who understands that the entire Constitution applies to every American, not just the Third Amendment, which says we don't have to quarter soldiers in our homes - (the only part of the Constitution, it seems, that the Bushies have left unmolested) - brace yourselves for the right wing to commence with the "activist judge" venom in 5...4...3...2...1

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It’s Simply How a Patriot Ought to Act

George Christian, the Connecticut librarian who, along with three colleagues stood up to the FBI and refused to turn over computer records of patrons who used the library computers during a 45 minute window of time appeared before a Senate panel this week.

The librarians clung to the principles of the Constitution and refused to comply.

The American Civil Liberties Union filed a legal challenge on behalf of the librarians but did not name them.

In prepared testimony before a Senate panel Christian said his experience "should raise a big patriotic American flag of caution.” He went on "Terrorists win when the fear of them induces us to destroy the rights that make us free."

Mr. Christian is the executive director of Library Connection, a consortium of 27 libraries in the Hartford, Conn., area. The librarians were served with National Security Letters, specious instruments that allow the FBI to obtain confidential information, usually only obtainable with a warrant bearing the signature of a judge.

The Patriot Act allows the FBI to use the national Security Letters to acquire telephone, e-mail, travel and financial records without a judge's approval. Recipients of National Security Letters are bound by gag orders, prohibited from disclosing their involvement in said requests. Prosecutors initially appealed the judge’s decision, but in April 2006 dropped their objections, stating they would no longer seek to enforce a gag order.

Later in the year, the request for the records was dropped entirely. The FBI stated simply that they had placed too high a priority on the initial threat that led to the issuance of the National Security Letters in the first place.

" 'Trust us' doesn't cut it when it comes to the government's power to obtain Americans' sensitive business records without a court order and without any suspicion that they are tied to terrorism or espionage," said Sen. Russell Feingold (D-Wis.), the chairman of the Senate Judiciary subcommittee on civil rights.

He said the government uses the USA Patriot Act and other laws to learn, without proper judicial oversight or any after-the-fact review, what citizens are researching in libraries.

Feingold, you may recall, was the only Senator to vote against the Patriot Act when the legislation was being debated in the wake of September 11. When a reporter asked him, incredulously, why he voted against the legislation (How could anyone vote against legislation called the Patriot Act???) his response was succinct and to the point: “I read it.”

The Inspector General for the Department of Justice, which oversees the FBI, recently conducted an audit that found 48 violations of law or rules in the application of the National Security Letters between 2003 and 2005. This revelation has led many in congress to call for a tightening of the legal standards and increase safeguards for civil liberties.

Mr. Christian’s testimony was moving and compelling. Lets hope it moved some of our elected officials enough that they will be compelled to repeal that apostasy of a law, that assault on Civil Liberties, that grossly misnamed piece of legislation known as “the Patriot Act.”

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