Judge Strikes Down Patriot Act Provisions

A federal judge ruled against wiretapping and searches without probable cause.

February 12, 2009, 2:47 PM

Sept. 26, 2007 — -- A federal judge has struck down two provisions of the Patriot Act, dealing another blow to the government in its legal war on terror.

U.S. District Judge Ann Aiken, who was appointed to the bench by President Clinton, found that the Foreign Intelligence Surveillance Act, as amended by the Patriot Act, unlawfully "permits the executive branch to conduct surveillance and searches of American citizens without satisfying the probable cause requirements" of the Fourth Amendment.

The case serves as yet another embarrassment for the government regarding the arrest of Brandon Mayfield, a Portland lawyer, who was originally detained as a suspect for the 2004 Madrid bombings based on fingerprint evidence found near the scene.

Mayfield was released only after the FBI admitted that the evidence had been improperly analyzed and that the fingerprints were not those of Mayfield.

Mayfield settled with the FBI for $2 million, but retained his right to challenge the government alleging that the act as amended by the Patriot Act is unconstitutional.

Mayfield accused the government of unlawfully placing listening devices in his home and executing so-called "sneak-and-peek" searches at his law office.

Before Sept. 11, law enforcement could only apply for a surveillance warrant from the Foreign Intelligence Surveillance Court, a court established by Congress to handle secret surveillance, if the primary purpose of the surveillance was to gather foreign intelligence.

After 9/11, in an effort to aid intelligence gathering, Congress changed the language of the act and allowed the gathering of foreign intelligence to be only a significant purpose of the surveillance.

Michael Greenberger, of the University of Maryland Law School, said, "If a significant purpose of getting the warrant was not to seek intelligence but to prosecute someone criminally — an action the Patriot Act authorized — this judge says that you are allowing the prosecution to do a search without probable cause that a crime has been committed."

Aiken wrote that the modification "allows the government to obtain surveillance orders under FISA [Foreign Intelligence Surveillance Act] even if the government's primary purpose is to gather evidence of domestic criminal activity."

Aiken found that, "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."

The government will most likely appeal the decision.

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