US judge says two provisions of Patriot Act unconstitutional

This from Ars Technica

In a ruling (PDF) released earlier today, a federal judge held that two sections of the Foreign Intelligence Surveillance Act amended under the Patriot Act are unconstitutional. Judge Ann Aiken found that sections 1804 and 1823 of the FISA violated the Fourth Amendment’s guarantees against unreasonable searches and seizures by the federal government.

The case, Brandon Mayfield, et al. v. the United States of America, dates from October 2004, after practicing Muslim Brandon Mayfield was mistakenly linked to the Madrid train bombings of March 2004 by a faulty fingerprint identification. The FBI subsequently began surveillance after it obtained an order from the Foreign Intelligence Security Court (the secret court tasked with a degree of oversight over domestic intelligence-gathering activities)—despite the fact that Mayfield didn’t hold a passport and hadn’t traveled outside of the US since his discharge from the US Army over a decade ago.

The FBI bugged the Mayfields’ residence, executed “sneak and peek” searches of their home, and got its hands on “private and protected information” on the family from third parties.
Mayfield was ultimately taken into custody as a material witness in May of 2004. After Spanish authorities linked the fingerprint to an Algerian national, Mayfield was released the following day.

Following his ordeal, Mayfield sued the federal government for violating his civil rights. He accused the government of unlawful arrest and imprisonment, unlawful search and seizures, and leaking data from his case to the media. The case was largely settled in November 2006 except for the matter of the legality of the sections of the Patriot Act that authorized the surveillance.

Under the Patriot Act, the government is allowed to engage in FISA-approved surveillance if the primary purpose is investigating criminal activity in the US. Judge Aiken ruled that the Act allows the government to do an end run around the Fourth Amendment’s probable cause requirement. All the government has to do is assert “a desire to also gather foreign intelligence information from the person whom the government intends to criminally prosecute… without first proving to an objective and neutral magistrate that probable cause exists to believe that a crime has been committed.

“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,” wrote Judge Aiken in her opinion.

In addition to finding the relevant sections of the Patriot Act unconstitutional, the judge also ordered the government to destroy all the illegally-obtained evidence.

The ruling is one of the first blows struck against the Bush Administration’s domestic surveillance activities by the US courts. There are a handful of cases related to the NSA’s spy program currently making their way through the courts, despite the government’s attempts to use the state secrets privilege to stop them. Given the Administration’s commitment to its surveillance program and reliance on the Patriot Act, it is all but certain that the decision will be appealed to the US Court of Appeals for the Ninth Circuit.

By Eric Bangeman | Published: September 26, 2007 – 10:43PM

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