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.”
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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.
