Intellectual Property Law

Bush Administration Appeals Patriot Act Ruling

By Ryan Singel, Kevin Poulsen, Sarah Lai Stirland, Kim Zetter, and David Kravets

The Bush administration on Friday appealed a federal court decision declaring as unconstitutional a central provision of the Patriot Act, which Congress quickly adopted after the Sept. 11 terror attacks.

At issue is a September ruling by an Oregon judge who said the Patriot Act gave too much power to the government when it came to snooping on suspected criminals in the United States -- a violation of constitutional search-and-seizure rules.

The administration is asking the San Francisco-based, 9th U.S. Circuit Court of Appeals to overturn U.S. District Judge Ann Aiken. The judge ruled that the Patriot Act made it too easy for the government to secure warrants against criminal suspects from a secret court designed to help the authorities monitor and gather intelligence on terror suspects.

The secret court, known as Foreign Intelligence Surveillance Court, was established after the passage of the 1978 Foreign Intelligence Surveillance Act. Weeks following the 2001 terror attacks, Congress amended that law from allowing warrants if "foreign intelligence information" is the "primary purpose" of the search or surveillance to foreign intelligence being a "significant purpose."

That opened the door for the government to obtain search and surveillance warrants to investigate criminal cases on U.S. soil without having to demonstrate probable cause, as required under the Fourth Amendment, U.S. District Judge Ann Aiken ruled in September.

Unlike search and surveillance warrants doled out against criminal suspects by federal judges, the secret court hands out warrants without even asking what probable cause the government has. Also, the government is not required to disclose what it is searching for or what it found.

"Since the adoption of the Bill of Rights in 1791, the government has been prohibited from gathering evidence for use in a prosecution against an American citizen in a courtroom unless the government could prove the existence of probable cause that a crime has been committed," Aiken ruled.

In a 100-page brief, (giant .pdf) the Bush administration said Aiken's ruling "is the first ever to find a constitutional defect in FISA, and the constitutional rule that it adopts has damaging implications for national security."

The case concerned Brandon Mayfield, a Portland, Oregon attorney who the authorities arrested and held for two weeks in May, 2004. The FBI alleged his fingerprint was found in Madrid, at the scene of a train bombing that killed 191 people two months before.

The authorities obtained FISA warrants authorizing electronic surveillance and physical searches of the attorney's home and office.

Two weeks after he was detained and held as a material witness in a grand jury investigation, the U.S. government freed him. The fingerprint in question matched a fingerprint of a suspected Algerian terrorist.

The government settled his lawsuit for $2 million. But Mayfield litigated the provision of the Patriot Act that the judge declared as unconstitutional.

Photo Dan_H

See Also:

• World's Top Surveillance Societies -- Updated with link
• NSA Must Examine All Internet Traffic to Prevent Cyber Nine-Eleven ...
• Surveillance Doesn't Mean What You Think It Means
• Mainstream Press Still Gets Wiretapping Debate Wrong
• Time Columnist Joe Klein Gets Wiretapping Debate Wrong a Third Time
• 9th Circuit Deals Setback to NSA Surveillance Victim

Full post as published by Threat Level on February 08, 2008 (boomark / email).