On Wednesday a federal court struck down two provisions of the Patriot Act which allowed warrantless searches as violations of the Fourth Amendment of the Constitution which protects against unreasonable search and seizure.
The case challenging the Patriot Act as well as aspects of the Foreign Intelligence Survillance Act was brought by Muslim convert and Oregon family law attorney Brandon Mayfield, over FBI investigative methods in his erroneous 2003 arrest as a suspect in the Madrid train bombings. In this investigation Mayfield's home was searched and he was subjected to electronic surveillance without warrants and based on evidence so flimsy that if probable cause had been applied warrants would never have been obtained. Mayfield previously won a $2 million settlement from the government over his mistaken arrest and detention.
The Ruling is very specific about where the Patriot Act went wrong, in modifying the FISA act to cross the line between legitimate prevention of terrorism and unconstitutional violation of the rights of citizens:
Prior to the Patriot Act, FISA may have had as its "general programmatic purpose ... to protect the nation against terrorism and espionage threats directed by foreign powers." After the Patriot Act, however, FISA surveillance, including the surveillance at bar, may have as its 'programmatic purpose' the generation of evidence for law enforcement purposes - which is forbidden without criminal probable cause and a warrant.In particular the court was concerned with violations of the requirement of particularity, that warrants must include specific information as to what evidence is being sought and where it is being sought, a limitation specifically introduced in the Fourth Amendment to prevent "blank-check" search warrants used to find evidence without probable cause.
The ruling in this case is a declaratory judgment, which doesn't apply any penalties or damages, but does establish the basis for further suits against the government over constitutional issues with FISA and the Patriot Act. While the ruling focuses on the specific changes in FISA resulting from the Patriot Act, it also calls into question the entire basis of FISA surveillance, though it does not specifically strike FISA down as a whole. It also could lead to the invalidation of much of the recently passed Protect America Act which authorized additional warrantless searches.
Meanwhile, Director of National Intelligence Mike McConnell is complaining that the government doesn't have enough surveillance power and wants more authority to conduct warrantless searches and electronic surveillance, a demand which may fall on deaf ears in light of this recent ruling.
As Judge Aiken has pointed out in this limited, but significant ruling, the rights guaranteed to Americans in the Bill of Rights are not subject to amendment or alteration or elimination by later acts of Congress. This suggests that many of investigative procedures permitted by FISA, the Patriot Act and other post-9/11 measures which bypass due process of law and probable cause are fundamentally unconstitutional, even if not specifically cited in this case. We can be sure they will be the focus of future challenges which this ruling has opened the door for.
Article comments
— go to most recent comments1 - Doug Hunter
Two million for a bad arrest? That's a lifetime of work for most people. Court awards and settlements are totally out of hand.
2 - gonzo marx
nice article...
/golfclap
Doug sez - "Court awards and settlements are totally out of hand."
perhaps someone has forgotten this - "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the people peaceably to assemble, and to petition the Government for a redress of grievances."
see the last bit about redress of grievances?
while there have been quite a few jury settlements that have indeed been excessive...according to that clause of the First Amendment, that's the way it goes...the right of a Citizen to seek a redress of grievances (lawsuit) cannot be abridged
just something some folks appear to forget
but i digress...
Excelsior?
3 - Lumpy
Two points here.
First. This ruling was handed down by one of the most liberal judges on the most liberal circuits in the nation with an overall rate of almost 90 percent turnover on appeal, so don't expect this ruling to stand.
Second. $2 million seems barely adequate for being held for days in secret without charge and then for more than a month after it was obvious you had no involvement in the crime and to be smeared in the press as a terrorist. This to a veteran whose only crime was to marry a muslim and convert to islam.
4 - Dirk Hanson
Very well done and welcome article.
Slowly but surely, we have no choice but to waste a great deal of time and money dismantling a package of "patriotic" legislation that was clearly unconstitutional on its face.
5 - moonraven
Uh--who, precisely is this WE--who is going to dismantle the post 9/11 human rights abuses?
Nobody here, so far as I can see, wants to do shit about anything.
Even Nalle, who has called himself--yes, laughably--a Libertarian (I would be willing to bet a lot of money that I am the ONLY person on this site who has ever voted Libertarian ticket for US President--I did so in 1980) writes a very weak-kneed piece here and you guys pat him on the back because it was not filled with hate and 100% pure baloney.
The reason, of course, that it's a weak-kneed piece is that NALLE HAS DEFENDED ALL THE POST 9/11 BUSH GANG assaults on the US Constitution and on human rights around the planet.
6 - Dave Nalle
MR, I voted libertarian in every presidential election except for one since 1980. I was also a paid employee of the libertarian party and have run for office as a libertarian, wasting substantial amounts of my hard earned money in the process.
It doesn't surprise me that you lack the intellect to figure out the difference between my understanding the necessities of realpolitik in the modern world and condoning it. I've seen pretty clearly that you're not terribly subtle in your thinking.
This article is 'weak' only because I wanted to keep it in the 'news' classification. If I'd done any more cheerleading then I'd have had to make it into an opinion piece.
That said, I think that this ruling is a very positive thing. However, having read the ruling, I'm afraid it's not as positive as it could be. It is just the starting point for an assault on the PATRIOT Act and not much of an assault on FISA.
The unfortunate truth is that for these excessive bits of legislation to be rolled back effectively and completely we need to do it legislatively. That's definitely not going to happen with the current group in Congress. The Democrats are too insecure to make such a bold move and the principled Republicans are too much of a minority.
Our best hope is that a whole series of similar rulings come down from higher courts and from more conservative courts especially the supreme court, creating an environment where our inherently weak and indecisive leaders feel safe and secure in taking action to repeal these acts.
Dave
7 - moonraven
The article is weak because the person who wrote it is not a libertarian at all.
I don't really give a fuck how you SAY you voted: Everything you have posted on this site in the past year has been in support of the Bush Gang's gutting of the US Constitution and of its grabbing other countries' resources and human rights abuses.
It's the behavior that counts, Nalle.
And your behavior shows that you are a rightwing Beat-the-bander for Bush.
In short, that you support not freedom, but tyranny.
Sell your phoney libertarian voting record to somebody else.
8 - handyguy
A Dem president may help complete the process of reforming these dangerous anti-freedom laws, since the current Dem congress has razor-thin margins that keep it from passing strong legislation [takes 60 votes in the Senate].
Dave, you're starting to look like a pinko, watch out, hehe.
9 - Dave Nalle
Handy, I guess I wasn't clear enough. The Dems don't want to do away with PATRIOT Act and FISA which they sponsored AND voted into effect, because they want those special powers for themselves. They want to use them on the potential domestic terrorists they see lurking at every gun show and in every church.
And MR, my 2002 campaign as a libertarian is well documented, as is my work as a campaign coordinator for Ed Clark in 1980 and for the LP in 1981 and 1982. Can you prove how you voted in 1980? As usual you're all bullshit and bullying but short on substance.
Dave
10 - Lumpy
The thought of hillary in command with the powers we've given the presidency chills my blood.
11 - REMF
Re #10;
So GW Bush's spurious invasion/occupation of Iraq doesn't bother you? I guess that makes sense, considering that it's someone else risking their lives over there...
(MCH)
12 - Clavos
Another non sequitur, emmy.
Bush's supposedly "spurious" invasion of Iraq (accomplished with the acquiescence of Hillary, among other dems) has NOTHING to do with Lumpy's observation about the possible presidency (small p) of mrs. BJ.
13 - bliffle
"Two million for a bad arrest? That's a lifetime of work for most people. Court awards and settlements are totally out of hand."
Depends on your point of view.
If you look at it as compensation for a few days of inconvenience and unwanted publicity, probably so.
If you look at it as career-wrecking public ignominy that hobbles your ability to earn a living, perhaps it's about right.
If you view it as punishment against a Federal State grossly overreaching it's legitimate powers, then it's way to small.
If it happened to you, which point of view would you take?
14 - moonraven
You COORDINATED a campaign for a candidate that you did not vote for???!!!
Something stinks here, Nalle [Gratuitous vulgarity deleted by Comments Editor].
I VOTED for Ed Clark. Not because he was a winning option, but because it was clear that Carter would not be allowed to do anything and Reagan was a skunk of a stripe I had already smelled when he was governor of California.
15 - handyguy
Anything that chills Lumpy's blood has my vote.
And, Dave, I predict that FISA and the wretched USA Patriot Act will not survive in their present form past 2009 in a Dem administration.
16 - gonzo marx
i wouldn't go so far, handy...
i think the "PATRIOT" Act will get struck down, either by SCOTUS or the Congress after Jan '09...if the D leadership had a fucking spine , they would do it before the election, imo...but they don't appear to have evolved into a vertebrate species yet
Lumpy in #10 is finally lamenting what i and others have been saying since the Admins pursuit of the "unitary executive powers" began...flip the Script and see how you would like it and what Objections you would raise
check and balances are the ONLY way our Republic survives, imo...
which is why some form of the FISA laws will probably stay in effect....a Court where the kinds of special investigations needed can take their "probable cause" and fulfill checks and balances by getting a warrant
#9 sez - "And MR, my 2002 campaign as a libertarian is well documented, as is my work as a campaign coordinator for Ed Clark in 1980 and for the LP in 1981 and 1982. Can you prove how you voted in 1980? As usual you're all bullshit and bullying but short on substance."
Quoted for Truth
nuff said...
Excelsior?
17 - Dave Nalle
I hope that Gonzo and Handy are both at least somewhat right, but I have very little confidence in it. The Supreme Court isn't going to strike either of these acts down as a whole. They've already made that clear, and the congress can't seem to pass anything meaningful to save their lives. So Hillary will likely get handed all of this power intact and I don't see her giving any of it up. One of the few reasons to support McCain is that I think he might be the only major candidate who WOULD push to roll these rights violations back.
Dave
18 - Eugene Debs
Nalle,
Congratulations, this is the shortest article I think you've ever written!
Must be a lack of conviction eh?
I wonder how long a follow up article to "No One Died Iraq Today" would be?
One paragraph?
Peace
19 - Dave Nalle
Martin "Identity Crisis" Lav, it's short because I wrote two short articles in one day instead of one long one. It's also short because it's news and doesn't have a lot of editorializing in it.
If I were to write a sequel to my prior article on Iraq - and I may at some point - it would be longer, not shorter. As time passes issues become more complex, not less, and it would be wrong to give it superficial treatment, especially when going against conventional assumptions.
BTW, I have been doing research on the progress made in Iraq, and it's truly remarkable how innacurate the general impression is here in the US. The level of normalcy restored in huge portions of that country is much greater than most in the US realize, because our media reports only on the violence and on nothing else.
Dave
20 - handyguy
Or a new administration could leave the laws intact but not choose to use/enforce them very often. Even the Bushies have apparently eased back on the warrantless wiretaps since they became a political hot potato.
21 - gonzo marx
handy...more likely since the sunshine has been turned upon the program and folks now know about it, which they didn't before...
in pursuit of it's "unitary executive" goals, this Administration has pushed as hard as they can in every direction, until the Lights exposes them, and even then, they have stonewalled EVERY investigation as much as they can
i share the doubts about the "Patriot Act" being taken down easily...most likely it will continue to be chipped away as more and more provisions are brought before various Courts and the Judicial knocks pieces down like last week's decision
much as i personally Respect McCain for his life's history and some of his principled positions...his uber-hawkish blind following of the neocon imperialist agenda makes him unpalatable to that large majority of Americans who want the Iraq fiasco over with, NOT a permanent piece of American foreign policy with permanent bases and acting as a black hole of Blood and Treasure with NO end to it
it's unfortunate that McCain appears to be the best man out of the crop of GOP contenders
could just be me
Excelsior?
22 - Clavos
I agree with whomever said upthread that the next admin, be it dem or rep, will NOT do away with these powers.
They involve MUCH power, and power is the main (if not the ONLY) motivator for politicos.
23 - Clavos
gonzo,
"while there have been quite a few jury settlements that have indeed been excessive...according to that clause of the First Amendment, that's the way it goes...the right of a Citizen to seek a redress of grievances (lawsuit) cannot be abridged"
Point taken.
However, the way the system works now, the only real winners in litigation are the lawyers. The "losers" are covered by insurance, and the shysters keep most of the "winners'" awards.
We need to find a way to limit their take in these cases. That should in itself result in a natural 'weeding out' of the frivolous suits, which in turn should reduce the number of lawyers chasing ambulances.
The rest, we shoot.
24 - gonzo marx
good point Clavos..
simple answer..if a Judge rules a lawsuit "frivolous" and without merit, the LAWYER who brought the case should pay all court costs for both sides and a penalty for wasting the Court's time
problem solved, eh?
this allows both the freemarket to work, AND satisfies that clause inthe First Amendment
just a quick Thought...
Excelsior?
25 - Clavos
That's a start, gonzo, but judges are lawyers too. I would add limits to the lawyers' take when they win.