There was a second judicial rebuff this month to provisions of the Patriot Act,in an opinion handed down yesterday by Judge Anne L. Aiken of Federal District Court in Portland in the case of MAYFIELD v. UNITED STATES of AMERICA. ( see posting on previous case )
Brandon Mayfield, is a lawyer in Portland who was arrested and jailed after the Federal Bureau of Investigation mistakenly linked him to the Madrid train bombings in March 2004. They had mis-identified a fingerprint found at the Spanish site. Under current Patriot Act provisions the FBI mounted an investigation that, “Mayfield claimed in the suit, that his home and law offices were secretly broken into by the FBI, his clients' files at his office were searched, his business and personal computers were secretly copied, his telephone was wiretapped and his home was bugged.”
( Source: “Federal judge rules 2 Patriot Act provisions unconstitutional” )
The government reached a settlement after acknowledging that the finger print was not Mr. Mayfield’s. But he was allowed to continue his legal challenge to the provisions of the Patriot Act. Judge Aiken ruled in favor of Mr. Mayfield’s challenges. In her opinion, Judge Aiken stated that,
“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. 50 U.S.C. §§ 1804(a)(7)(B) and 1823(a)(7)(B). 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.”…
“Therefore, I conclude that 50 U.S.C. §§ 1804 and 1823, as amended by the Patriot Act, are unconstitutional because they violate the Fourth Amendment of the United States Constitution. Plaintiffs' Amended Complaint for declaratory relief is granted.” …
In re Sealed Case. A 2002 opinion from the United States Foreign Intelligence Surveillance Court of Review whose anaysis and conclusion, Judge Aiken questioned and declined to adopt in reaching a conclusion in the Mayfield case.