2 Patriot Act provisions ruled unlawful

http://www.boston.com/news/nation/articles/2007/09/26/2_patriot_act_provisions_ruled_unlawful/

2 Patriot Act provisions ruled unlawful
By William McCall, Associated Press Writer
September 26, 2007

PORTLAND, Ore. --Two provisions of the USA Patriot Act are unconstitutional because they allow search warrants to be issued without a showing of probable cause, a federal judge ruled Wednesday.

U.S. District Judge Ann Aiken ruled that the Foreign Intelligence Surveillance Act, as amended by the Patriot Act, "now permits the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment."

Portland attorney Brandon Mayfield sought the ruling in a lawsuit against the federal government after he was mistakenly linked by the FBI to the Madrid train bombings that killed 191 people in 2004.

The federal government apologized and settled part of the lawsuit for $2 million after admitting a fingerprint was misread. But as part of the settlement, Mayfield retained the right to challenge parts of the Patriot Act, which greatly expanded the authority of law enforcers to investigate suspected acts of terrorism.

Mayfield claimed that secret searches of his house and office under the Foreign Intelligence Surveillance Act violated the Fourth Amendment's guarantee against unreasonable search and seizure. Aiken agreed with Mayfield, repeatedly criticizing the government.

"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.

By asking her to dismiss Mayfield's lawsuit, the judge said, the U.S. attorney general's office 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. This court declines to do so."

Elden Rosenthal, an attorney for Mayfield, issued a statement on his behalf praising the judge, saying she "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."

Justice Department spokesman Peter Carr said the agency was reviewing the decision, and he declined to comment further.

The ruling probably won't have any immediate affect on enforcement under the Patriot Act, according to legal experts who predicted the government would quickly appeal.

"But it's an important first step," said Jameel Jaffer, director of the American Civil Liberties Union's national security project.

Jaffer noted that the Patriot Act carries dozens of provisions and that several have been challenged -- but that this is one of the first major rulings on Fourth Amendment rights.

"This is as clear a violation of the Fourth Amendment as you'll ever find," Jaffer said.

Garrett Epps, a constitutional law expert at the University of Oregon, said the ruling adds to the poor record that the Bush administration has piled up in defending the Patriot Act.

"It's embarrassing," Epps said. "It represents another judicial repudiation of this administration's terrorist surveillance policies."

A federal judge in New York this month handed the ACLU a victory in a challenge to the Patriot Act on behalf of an Internet service provider that was issued a "national security letter" demanding customer phone and computer records. The judge in that case ruled the FBI must justify to a court the need for secrecy for more than a brief and reasonable period of time.

Mayfield, a Muslim convert, was taken into custody on May 6, 2004, because of a fingerprint found on a detonator at the scene of the Madrid bombing. The FBI said the print matched Mayfield's. He was released about two weeks later, and the FBI admitted it had erred in saying the fingerprints were his and later apologized to him.

Before his arrest, the FBI put Mayfield under 24-hour surveillance, listened to his phone calls and surreptitiously searched his home and law office.

The Mayfield case has been an embarrassment for the federal government. Last year, the Justice Department's internal watchdog faulted the FBI for sloppy work in mistakenly linking 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.

Congress passed the Patriot Act with little debate shortly after the Sept. 11, 2001, attacks to help counter terrorist activities. It gave federal law enforcers the authority to search telephone and e-mail communications and expanded the Treasury Department's regulation of financial transactions involving foreign nationals. The law was renewed in 2005.

In early August, the Bush administration persuaded lawmakers to expand the government's power to listen in on any foreign communication it deemed of interest without a court order, even if an American was a party. The expanded surveillance authority expires early next year. As Congress takes a closer look at the law, many Democrats want to rein in language that many consider overly broad.