Key Patriot Act Provisions Ruled Unconstitutional

A federal judge has ruled parts of the Patriot Act which give the executive enhanced powers to conduct surveillance and searches of terrorism suspects unconstitutional. Dan Eggen for WaPo:

A federal judge in Oregon ruled yesterday that two provisions of the USA Patriot Act are unconstitutional, marking the second time in as many weeks that the anti-terrorism law has come under attack in the courts. In a case brought by a Portland man who was wrongly detained as a terrorism suspect in 2004, U.S. District Judge Ann Aiken ruled that the Patriot Act violates the Constitution because it “permits the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment.”

“For over 200 years, this Nation has adhered to the rule of law — with unparalleled success,” Aiken wrote in a strongly worded 44-page opinion. “A shift to a Nation based on extra-constitutional authority is prohibited, as well as ill-advised.”

[…]

Aiken’s ruling came in the case of Brandon Mayfield, a lawyer who was arrested and jailed for two weeks in 2004 after the FBI bungled a fingerprint match and mistakenly linked him to a terrorist attack in Spain. The FBI used its expanded powers under the Patriot Act to secretly search Mayfield’s house and law office, copy computer files and photos, tape his telephone conversations, and place surveillance bugs in his office using warrants issued by the Foreign Intelligence Surveillance Court.

In a settlement announced in November 2006, the U.S. government agreed to pay $2 million to Mayfield and his family and it apologized for the “suffering” that the case caused him. But the pact allowed Mayfield to proceed with a legal challenge to the constitutionality of the Patriot Act, resulting in yesterday’s ruling by Aiken, who was nominated to the bench by President Bill Clinton in 1997.

The reporting here is rather confusing. If a FISA court issued the warrant, what’s the problem?

Eggen’s report from last November, when the FBI paid Eggen off and issued an apology, is helpful.

FBI examiners had erroneously linked him to a partial fingerprint on a bag of detonators found after terrorists bombed commuter trains in Madrid in March, killing 191 people. The bureau compounded its error by stridently resisting the conclusions of the Spanish National Police, which notified the FBI three weeks before Mayfield was arrested that the fingerprint did not belong to him.

Mayfield’s lawsuit alleged that his civil rights had been violated and that he was arrested because he is a Muslim convert who had represented some defendants in terrorism-related cases.

The settlement includes payments of $1.9 million to Mayfield and $25,000 each to his wife and three daughters, according to court documents. The amount is more than twice what the U.S. government agreed to pay earlier this year to Wen Ho Lee, a U.S. nuclear scientist who alleged that officials violated privacy laws by identifying him as a suspect in a spying investigation.

The government has also agreed to destroy all material obtained during electronic surveillance of Mayfield and clandestine searches of his home and office.

The case has become a potent symbol for civil liberties advocates who argue that it shows how easily the government can abuse its powers to detain alleged terrorism suspects under relaxed standards of probable cause.

Mayfield said in a statement yesterday that he was threatened with the death penalty while in custody, that he and his family were targeted “because of our Muslim religion,” and that he looks forward “to the day when the Patriot Act is declared unconstitutional.” “The power of the government to secretly search your home or business without probable cause, under the guise of an alleged terrorist investigation, must be stopped,” Mayfield said.

Justice Department spokeswoman Tasia Scolinos issued a statement emphasizing that the FBI was not aware of Mayfield’s Muslim faith when he was first identified as a suspect and that investigators “did not misuse any provisions of the USA Patriot Act.” Scolinos also said the FBI has implemented reforms to avoid a similar mistake in the future. A report released in March by Justice Department Inspector General Glenn A. Fine found that although Mayfield’s religion was not a factor in his initial identification, it contributed to the FBI’s reluctance to reexamine its conclusions after challenges from Spanish police.

Fine also found that the FBI used expanded powers under the Patriot Act to demand personal information about Mayfield from banks and other companies, and that the law “amplified the consequences” of the FBI’s mistakes by allowing other government agencies to share flawed information.

The Mayfield and Wen Ho Lee cases show the danger in relaxing bedrock civil liberties principles in the name of security. The irony is that a great number of conservatives, who are rightly deeply suspicious of the ability of government to manage the economy or otherwise be trusted to manage our lives, seem perfectly oblivious to the possibility that intelligence and law enforcement agencies might frequently screw up. It’s certainly unlikely that a dispassionate federal judge would have issued a warrant on such flimsy evidence.

It’s especially galling in that Mayfield is a former officer in the United States Army. This means he received a commission by the president “reposing special trust and confidence in [his] patriotism, valor, fidelity and abilities” and had therefore been vetted for at least a Secret security clearance.

There’s a limited place for the FISA process and secret investigations in counterterrorism. It makes sense for the FBI and the intelligence agencies to be able to get permission to conduct electronic surveillance without making their sources and methods a matter of public record. I can’t conceive, however, of a rational for allowing physical searches of people’s domiciles — let alone arrests and detentions — to be made on a similar basis.

FILED UNDER: *FEATURED, Intelligence, Law and the Courts, National Security, Terrorism, , , , , , , ,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Anderson says:

    Here’s the op.

    Basically, the judge thinks it’s b.s. that the feds can get a FISA warrant where ordinary criminal investigation, not foreign intel, is their primary purpose; they just have to allege a “significant” f.i. interest to get the FISA warrant. I liked this quote near the end:

    In place of the Fourth Amendment, the people are expected to defer to the Executive Branch and its representation that it will authorize such surveillance only when appropriate. The defendant here is 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.

    The problem could be solved by requiring a fairly persuasive showing that foreign intel is indeed

    Now, in the Mayfield case, they had a print that appeared to match one from the Madrid bombing; even Mayfield’s own expert thought so. Of course, it turned out to be a much better match to the print of one of the actual bombers, and it was a bit odd that Mayfield hadn’t been anywhere near Madrid. But I think they had an arguable basis for a run-of-the-mill warrant; they just chose to proceed via FISA.

    One lesson should be that fingerprinting is not an exact science, and when you hear that some local felon’s prints were a match, take that with a bit of salt.

  2. Kent says:

    he law “amplified the consequences” of the FBI’s mistakes by allowing other government agencies to share flawed information.

    Since almost all intelligence on terrorist activities is going to be imperfect (“flawed”) the consequence of this thinking will be that the interdepartmental barriers that prevented anyone from connecting the dots prior to 9/11 will be back in place.

    The Mayfield and Wen Ho Lee cases show the danger in relaxing bedrock civil liberties principles in the name of security.

    I know quite a bit about the Wen Ho Lee case, having had some long conversations with the LANL scientist who did the computer forensics, and I am of the opinion you’re dead wrong about it.

  3. DC Loser says:

    Kent – regardless of what you have been told about the Wen Ho Lee case, if the prosecutors weren’t willing to go to court to try the case, it didn’t prove squat. You can say Lee was guilty until you’re blue in the face, but in the end, if the government wasn’t willing to go to court, it had no case.

  4. whippoorwill says:

    The irony is that a great number of conservatives, who are rightly deeply suspicious of the ability of government to manage the economy or otherwise be trusted to manage our lives, seem perfectly oblivious to the possibility that intelligence and law enforcement agencies might frequently screw up

    This is true for one simple reason. With one of their own in the White House, somehow conservatives feel immune to any government excesses into their lives. When the next democratic president comes along they will be howling about civil rights and government authority etc… It’s called hypocricy and everyone does it some, but it has reached pathological levels in a large portion of the republican party.

  5. Kathy says:

    If a FISA court issued the warrant, what’s the problem?

    The problem apparently is that the warrant was not issued “upon probable cause.” Under the relevant provisions of the Patriot Act, the government does not have to show probable cause to get a warrant; they only have to state that the warrant is being requested in the context of an investigation into suspected terrorist connections.

  6. James Joyner says:

    The problem apparently is that the warrant was not issued “upon probable cause.”

    Right. That just wasn’t clear from today’s report. The provision as written would seem unconstitutional on its face.

  7. Hal says:

    The irony is that a great number of conservatives, who are rightly deeply suspicious of the ability of government to manage the economy or otherwise be trusted to manage our lives, seem perfectly oblivious to the possibility that intelligence and law enforcement agencies might frequently screw up.

    Yea, I’d just have to echo whippoorwill’s comment above. I remember the banshee cries over FBI files during the Clinton administration. The outcry then was almost deafening.

    If a democrat is elected in 2008 (and Cheney allows them to take office), I’m sure you’ll find that Conservatives went to bed the previous night and were enlightened by a dream, woke up that morning with the sudden realization that a massively powerful executive branch with extra constitutional powers is a really, really bad thing.

    If Hillary is the democrat who takes the office of president in 2008, then the scream will be heard through the vacuum of space and crush ear drums of aliens camped out on Pluto.

    Man, it’ll be sweet just to see the screeds that Malkin, Coulter, et. al. publish on the day they realize Hillary has the power to spy on anyone, anytime, with no warrants required.

  8. Anderson says:

    woke up that morning with the sudden realization that a massively powerful executive branch with extra constitutional powers is a really, really bad thing.

    “I keep having the same experience and keep resisting it every time. I don’t want to believe it although it’s palpable: the great majority of people lacks an intellectual conscience.” –Nietzsche, The Gay Science, # 2.

    (N. had a different definition of “intellectual conscience” than is implicated by Hal’s remarks, but that kind of thing always reminds me of the N. quote, regardless.)

  9. Steve Plunk says:

    The idea conservatives are comfortable because they have “one of their own” in the White House is just wrong. Conservatives recognize everything has trade offs and the security issues are large enough to accept these particular trade offs.

    A stop off over at Radley Balko’s blog shows how often law enforcement makes mistakes. In this case it appears a mistake was made but at least it was somewhat understandable. A matching print started it all but the investigation later cleared him.

    Comparisons to the Clinton abuse of FBI files for domestic political use is way off base. Failure to understand the difference is inexcusable.

    In the big picture this use of “extra constitutional powers” is minor compared to Lincoln’s abuses during the Civil War or Roosevelt’s during WWII. These are measured and reasonable responses to the domestic threat our enemies pose.

    It is important to understand how conservatives can accept these powers of the government while rejecting the ability of the government to manage other affairs. Day to day taxation and governmental regulation creeps into our live incessantly. FISA actions impacting us are less likely than being hit by lightning or winning the lottery. Not to mention we all feel pretty safe if we are not doing anything wrong.

    I don’t see this changing our lives in the long run. I don’t see this as the first step toward jack booted thugs running the country. To be very honest I fear my city council, county government and state regulatory agencies more than I fear anti-terror operations of any sort.

  10. This is a good example for the tweaking that is necessary; FISA is outdated.

    Nothing is or will be perfect and what happened to Mayfield is going to happen; I sure wouldn’t want to be in his shoes, but I’ll take my chances.

  11. legion says:

    The idea conservatives are comfortable because they have “one of their own” in the White House is just wrong. Conservatives recognize everything has trade offs and the security issues are large enough to accept these particular trade offs.

    Steve,
    That may be how you feel about the issue, but when it comes to the loudest, most public representatives of the conservative movement, whippoorwill absolutely correct.

    Even a cursory glance at people like O’reilly, Limbaugh, Gingrich, etc. shows that they are not just hypocrites, but absolute moral cowards. They are unwilling to and incapable of living up to the same standards that they would have enforced on everyone else around them. They are firmly in the grip of the idea of a permanent Republican majority, and cannot grasp the idea that the powers they want for “their side” will still be there when they themselves are not.

    I don’t see this changing our lives in the long run. I don’t see this as the first step toward jack booted thugs running the country. To be very honest I fear my city council, county government and state regulatory agencies more than I fear anti-terror operations of any sort.

    That’s because the guns (and the cameras, and the wiretaps) are not pointed at you and yours… today.

  12. anjin-san says:

    To be very honest I fear my city council, county government and state regulatory agencies more than I fear anti-terror operations of any sort.

    Interesting that you feel that way, because there are towns all over America which face essentially no terrorist threat, but nonetheless are putting up surveillence cameras with Homeland Security grants. Hope you don’t mind big brother looking over your shoulder.

  13. Hal says:

    To be very honest I fear my city council, county government and state regulatory agencies more than I fear anti-terror operations of any sort.

    Yea, I remember my first beer, too.

  14. Yea, I remember my first beer, too.

    Hey, let’s keep Steve Martin out of this…

  15. Michael says:

    To be very honest I fear my city council, county government and state regulatory agencies more than I fear anti-terror operations of any sort.

    Security is always a balancing act between what is most likely to happen, what will cause the most damage if it does happen, what is the cost to reasonably prevent it from happening.

    For example, you are exceedingly unlikely to be struck by lightning, and yet when there is a thunderstorm you take shelter, stay away from tall objects, and don’t use your umbrella. Why? Because the even though the chances of being struck are low, the amount of damage that it will cause is high, and the cost of avoidance is low.

    Yes, your local city council may be more likely to negatively impact your life, but DHS can have a much more severe impact than your city council can, even if it’s less likely. So really it comes down to the cost of avoiding it, which I think is where we will disagree.

  16. vnjagvet says:

    As time goes by and there are no further successful terrorist attacks in the US, this sort of decision will, I predict, become much more common. I haven’t read it, so I can’t say whether I agree with it or not. It will be vigorously appealed, of course, which is a good thing.

    I believe that robust litigation of these issues (with the “best and brightest” attorneys representing both sides) is necessary for preservation of our constitutional government.

    Sixty five years ago, in the name of security, US Citizens who are my age were, as toddlers, taken from their homes in California with their families, forced to abandon their homes and property, and placed in concentration camps without due process of law. Mind you, these were not illegal immigrants; they were US Citizens.

    The “decider” in this case was one of our more revered Presidents and a civil libertarian of note, FDR, who initiated the action by Executive Order on the grounds of military necessity.

    Unlike European Jewry, these citizens were not killed, maimed or subjected to obscene medical experiments.

    German Americans on the east coast (like my wife and her extended family) were not rounded up like the Japanese were, so race was definitely a factor in the decision of who to round up.

    The Supreme Court in the Koramatsu case held that FDR’s Order was a constitutional exercise of executive authority. Justice Black another prominent civil libertarian, wrote the opinion, and his civil libertarian colleague Justice Douglas agreed.

    The point is that cases like this have a history of being difficult and it is hard to predict their outcomes with any certainty.

    This is the kind of case where attorneys and judges earn their money.

    It is where the proverbial rubber meets the road.

  17. Kent says:

    You can say Lee was guilty until you’re blue in the face, but in the end, if the government wasn’t willing to go to court, it had no case.

    DC Loser:

    I’ll repeat to you what I said to James: You haven’t a clue.

    I remind you that Lee did, in fact, plead guilty to mishandling classified information, which is a felony.

    One reason he was not convicted of additional charges was that, to prove its case, the government would have had to present highly sensitive material in open court. The defense knew this and played it for all it was worth. I believe the term is “graymail.”

    There is historical precedent. Look at the history of the Chicago Tribune‘s leak of the fact that naval intelligence knew the Japanese were going to attack Midway. The persons responsible could not be prosecuted because it would only have called public attention to the leak and ensured the Japanese would notice the news story.

    Another difficulty is that, while there is simply no question that Lee willfully mishandled classified material, the fate of this material, and his exact motivations for smuggling it out of the laboratory, remain unclear. The investigation was botched — but not in the sense that Lee was an innocent man being railroaded.

  18. Steve Plunk says:

    Anjin-san,

    I agree, the waste of dollars going to small towns who invest in SWAT weaponry, surveillence cameras, and lord knows what to combat terror where it is very unlikely sickens me. It is clearly a mis-allocation of resources. These towns are addicted to anything free and congress is addicted to giving things away.

    Hal,

    Sorry, I don’t get it. A full, reasoned response would be appreciated.

    Michael,

    I see your point and appreciate it. Like you imply, we’ll agree like gentlemen to disagree.

    The debate surrounding this is robust and reasonable on both sides. That is prima facia evidence of the law being just about where it should be. Blandly Urbane is certainly correct predicting some tweaking over time as the security requirements, outside threats, and domestic concerns will change over time.

  19. DC Loser says:

    Kent – I may not have a clue, but was Lee convicted of espionage? No. Why didn’t the government want to go to trial? Even the presiding judge was furious with the shameful behavior of the prosecution and personally apologized to Lee for his treatment. You can say anything you want but if you can’t prove it in a court of law, it’s just hearsay. Our system of justice requires the state to prove its case, but here it didn’t believe it was worth it to prosecute. So tell me if the evidence was so overwhelming, why not?

  20. Hal says:

    Steve, that was a full reasoned response to what you wrote. You’re attributing behavior that pretty much everyone exhibits (such as realizing tradeoffs, etc) to a party (republicans) as if it was some magical essence granted when one drinks the koolaid.

    Then there’s the Failure to understand the difference is inexcusable. when I brought up the Clinton FBI imaginary scandal y’all were pushing during that time period.

    You can wet your bed when you think of the terrorists – no sweat off my brow. But when you start worrying more about your local school board and city council more than abuse of authority and clear extra constitutional power grabs…

    Well, there’s not much to discuss between the two of us as you clearly live in the parallel reality which the 28% who approve of this president and think he’s doing a bang up job live.

  21. Hal says:

    And just to be clear Steve, I’m well aware that this is a right wing blog and you’re a proud right winger. No worries there. But there’s not much common ground between us and your views are pretty well fixed in stone and quite different from the reality I perceive.

  22. Andy says:

    I don’t see this changing our lives in the long run. I don’t see this as the first step toward jack booted thugs running the country. To be very honest I fear my city council, county government and state regulatory agencies more than I fear anti-terror operations of any sort.

    That’s because your name is Steve and not Ahmed or Hakeem.

  23. Hal says:

    That’s because your name is Steve and not Ahmed or Hakeem.

    Precisely.

    I can imagine that Steve probably wouldn’t have been too worked up about the Japanese internments either, figuring the trade offs were worth it.

  24. First – The Federal Judge gave his ruling “unconstitutional.” Who is this judge? Is he a Law Maker? No! He does not have the right to make laws from his bench! His job is to inforce the law not make laws. These activicist judges will continue in this unlawful act until we “the people” put a stop to it.

    Judges Are Not to Legislate from The Bench! Anyone up for stopping these illegal actions?

  25. Michael says:

    He does not have the right to make laws from his bench! His job is to inforce the law not make laws.

    Oh, so close and yet so far. It is not his job to make laws, nor is it his job to enforce the law. It is his job to rule on the law, which is exactly what he did in this case.

    Just because you don’t agree with a judge, doesn’t make him an activist.

  26. Steve Plunk says:

    Hal,

    I do expect we have different visions of reality.

    It does cheapens your argument when you resort to terms such as “wet your bed”. It’s a public policy debate among adults, insults are petty.

    I may live amongst the 28% crowd but with the Democratic congress at far lower level I feel pretty comfortable.

    It would also elevate your argument not to do someone else’s thinking. I would argue against internments for any American citizens. It was the darling of the Democratic party FDR who was responsible for that shameful episode in our history.

    This is not so much a right wing blog as a blog for sharing ideas. I happen to believe in certain conservative and libertarian principals and argue in support of them. If people don’t want to hear alternative points of view they don’t have to stop by. When you do stop by it’s nice to show some measure of tolerance.

  27. Hal says:

    It does cheapens your argument when you resort to terms such as “wet your bed”. It’s a public policy debate among adults, insults are petty.

    Perhaps, but considering the hysterics and the literal religious aspect to our response which prevents any serious discussion on the subject, one makes lemonade when given lemons.

    Considering that 10x people die every year in traffic accidents, or that you stand a better chance of being eaten by a shark or killed by lightening than ever even being involved – much less hurt/maimed/killed – in a terrorist attack, it’s stunning to see the effect a bunch of losers has had on our national psyche.

    Bed wetting is an appropriate derogatory term which accurately describes the response so far. Adults, or at least adults in the true sense of the term rather than those who faint at the use of Galic words or resort to using the description of traitor for people who disagree with them.

    It was the darling of the Democratic party FDR who was responsible for that shameful episode in our history.

    No skin off my back for tarring FDR. I’m not, as they say, a big “party” guy. I started off my political life as a libertarian and when I grew up I turned liberal largely because of what I saw Regan (for whom I voted for, to my eternal shame) did to this country. But the democratic party identification hasn’t really been a part of my identity, so feel free to slur them all you want – not going to worry me.

    But back to the point, the issue here is police powers of the state and as you pointed out in your first comment, you’ve made the calculations which find extra constitutional abuses of the executive branch as acceptable. As history has shown, people who do so inevitably end up excusing/allowing far more than they originally bargained for because the consequences of their decision didn’t immediately affect them.

    This is not so much a right wing blog as a blog for sharing ideas.

    Whatever.

    Out of curiosity, are you the same Steve who replied on the thread regarding the McClatchy article? I’ve been assuming so, and that’s colored my response to you. Perhaps that was in error.

    Still, when you start off like you did with your comments, it’s pretty clear that we’re in two separate worlds and it’s doubtful your going to see anything even remotely resembling the way I see it. I was nice – I didn’t rise to your initial bizarro world comment. It’s when you asked me to expand on it that I did.

    Don’t ask for what you don’t want to hear.

  28. Kent says:

    Even the presiding judge was furious with the shameful behavior of the prosecution and personally apologized to Lee for his treatment.

    I’ll say something I don’t often say about a Reagan-appointed jurist: In my opinion, Judge Parker is a flaming idiot.

    If you examine my postings carefully, you will see that I never asserted that Lee was guilty of espionage. Because the investigation was bungled, we will never know. That’s why he wasn’t charged with espionage.

    The charges were for egregious mishandling of classified material. Of that, there can be no doubt of his guilt. He pleaded guilty to a single count of mishandling classified material as part of a plea bargain. I don’t see the civil liberty issue James originally alluded to.

    I’ve seen the classified briefing on the computer forensics. So did a great many other people close to Lee, including supporters who are now former supporters. I’m told the court documents, which are publicly available in redacted form (classified information blacked out), actually give a pretty good picture of the computer forensics. And a damning one.

    I have no idea why Judge Parker offered his bizarre apology. Well, that’s not quite true; I’ve heard some speculation. But that really is hearsay. I do note that Judge Parker approved of a plea bargain making Lee a convicted felon. If Judge Parker didn’t think Lee committed a felony, why did he approve the plea bargain? And if he did think Lee committed a felony, what was there to apologize for? It makes no sense. Hence, my verdict on the Judge’s intelligence.

  29. Hal says:

    Because the investigation was bungled, we will never know. That’s why he wasn’t charged with espionage.

    This is, in a nutshell, besides the bedrock reasons of simple sanity, civil and human rights, of why we have the rule of law. Yes, real crooks do get off because the police don’t follow the rules. Boo hoo. The larger, far more important picture, is doing things right, according to the rules.

    That is, in a nutshell, why this post exists. The constitution and its limits on the capabilities to conduct searches and such aren’t there to protect criminals. It’s there to protect *us*. And when we weaken – or in the case of this administration, completely blow through the constitutional limitations like so much wet tissue paper – we put all of us at risk. Serious and very real risk.

    Maybe Steve Plunk thinks the trade offs are worth it. But I seem to remember Ben Franklin saying: “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

    I happen to agree with this – doubly so for so called libertarians who, at least in theory, hold civil liberties of which Franklin refers in the highest regard. These scum deserve neither liberty or safety.

    Strange how this weird strain of hyper authoritarian libertarians appeared after 9/11.

    Bed wetters all.