Thursday, September 27, 2007

U.S. District Judge Ann Aiken Rules Part of Patriot Act Unconstitutional

The countries security may have suffered a blow in conservatives eyes when U.S. District Judge Ann Aiken ruled that the Foreign Intelligence Surveillance Act(as amended by the Patriot Act) "now permits the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment." Brandon Mayfield is a Portland Attorney who was mistakenly linked by the FBI to the Madrid train bombings that killed 191 people in 2004. Mayfield was a Muslim convert. He was taken into custody on May 6, 2004 because police mistakenly identified a finger print on the detonator as belonging to Mayfield. Prior to his arrest, Mayfield had been placed on 24 hour surveillance, his phone conversations bugged, and his home and office searched. A civil suit followed in which the U.S. government apologized and settled part of the lawsuit for $2 million. (The Government admitted that they misread a fingerprint. Mayfield not only got the settlement money, he also retained the right to challenge the Patriot Act. )

Mayfield argued that secret searches of his house and office under the Foreign Intelligence Surveillance Act violated the Fourth Amendment's guarantee against unreasonable search and seizure. Judge Aiken agreed, stating: "For over 200 years, this Nation has adhered to the rule of law _ with unparalleled success. A shift to a Nation based on extra-constitutional authority is prohibited, as well as ill-advised... 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."

Elden Rosenthal, represented Mayfield. Justice Department spokesman Peter Carr indicated that the agency was reviewing the decision. The ruling will likely have little affect on law enforcement as the decision will likely be appealed. "But it's an important first step," according to Jameel Jaffer, director of the ACLU. "This is as clear a violation of the Fourth Amendment as you'll ever find," Jaffer exclaimed after the victory.

The Bush administration has had poor success in defending the Patriot Act in recent times.
In New York this month, the ACLU scored a victory in a challenge to the Patriot Act on behalf of an Internet service provider that was issued a "national security letter" demanding customer phone and computer records. The judge held that the FBI must justify to the court the need for secrecy for more than a brief and reasonable period of time.

The Mayfield case has been embarrassing for the administration. Congress passed the Patriot Act shortly after 911 to help counter terrorist activities. It allowed federal officers the authority to search telephone and e-mail communications. It also expanded the Treasury Department's regulation of financial transactions involving foreign nationals. The law was subsequently renewed in 2005. Many Democrats want to restrict the Act's language because the act gives the government too broad of powers.


Anonymous said...


Iron Mike said...

It must be that time again. Legal Pub features some scholarly legal article. While I really enjoy reading about the law, how about my cliff note version.

Lawyer falsly accused of being part of Madrid bombing gets two million clams and a Portland Judge says don't search homes without a warrant.

How's that for a football coach?

Iron Mike

Legal Pub said...

Good job, Mike. I could not have summarized it any more concisely.

Anonymous said...

Nice article pubmaster

J.J. said...

This is a real important topic as it jeopardizes our freedom and targets minorities.


Anonymous said...

Liberal judges and Democrats try to put America at risk by fighting anti-terrorist measures, is what the title should be.

Anonymous said...

Damn…what a sticky mess.

1st, J.J. straight to “targets minorities”? I don’t see it that way.

While its true that most of those who wish to actually do us harm are male, I don’t cry, “sexism”, although male. Its true that most of those who wish to actually do us harm are younger males, usually not fat and in same kind of decent shape (almost as if they have been training for something), perhaps motivated by a particular religious viewpoint, speaking some other language other than English as a first language, etc…Are you saying that we don’t investigate these people BECAUSE they resemble the above?

Case in point.

A while back we had a store robbed at gunpoint. The employees were pistol whipped by a described group of young black males. A few minutes later a short distance away we detained a vehicle with similar persons.

While discussing the matter with opposing counsel I was challenged with the often used (and trite and insulting), “you stopped my clients because they were black”. Well…yes and no…just not they way your looking at it.

We had a particular robbery, committed by particularly described people, the cordon was tight (for a change), your clients were a striking match for the particularly described suspects in regards to height, age, clothing, facial hair, hair, build, weight, teeth, sex….and true enough…race. Factor in locative and temporal proximity and we have a lawful investigative dentition.

True counselor, we were not detaining white people because white people did not commit this crime. We weren’t detaining females, or short fat people, or old people, or cows, or giraffes, or….We were detaining people who particularly matched the particularly given descriptions involved in this particular crime in this particular….etc. Understand counselor?

You aren’t saying that we stopped them simply because they are black, are you counselor? And if you’re not, what are you saying…that we should let them go simply because they’re black?

However, J.J. I do understand (to the degree I’m able) that racism does exist and it is real and palpable in many areas of or lives. As a doctorial graduate of a HBC, believe me when I say “I do understand your position as much as anyone in my position can.”

But I firmly believe it is just as important for those who discriminate to stop discriminating as it is for those who have been discriminated against to stop seeing everything as discrimination. It’s a two way street.

I get so sick of, “it’s because I’m black”. No, it’s because your stereo is shaking the neighborhood…its because your stealing…its because your fighting…its because _________ (fill in blank)….look in the mirror at your behavior. Ask yourself, “could I reasonably be viewed as violating the law”. If the answer is “yes”…stop! It’s not racism…it’s your behavior. If the answer is “no”….act as if your momma gave you some sense and manners and take the dispute to the courtroom.

The current profiles used to pursue those who wish to set off a dirty bomb in Settle may (inadvertently) pick up in the net innocent persons (all do, that’s life). And these persons may be of minority status. But that is an unfortunate and unintended consequence of “looking for bad guys”.

Sorry, our bad. This happened not because you’re a minority but rather because some bubblehead misread a fingerprint. Yes, you were wronged…true enough…but not because of race. It was an inadvertent, random correlated factor not used in the decision making process independent of other sufficient information. See?

So I proffer a question similar to the above, “do we let them go, or not further investigate, simply because they’re minorities”?

Further, to the American Communist Labor Union (the ACLU, I may freely speak tongue-and-cheek here may I not?) I disagree with this is a “clear” violation.

The touchstone of the 4th is “reasonableness”. That’s all it takes…nothing more. And the Constitution, the most sacred document written by man, is not a suicide pact. This is why the founders wrote in “reasonableness”. It is a situational analysis based upon the totality of the circumstances.

Have reasonable suspicion that a kid stole a snickers bar from a 7-11 and he’s hiding in his room? Sorry, can’t go in. Have reasonable suspicion that a dirty bomb is under the kitchen sink and 2 million people are going to die and 100 square miles turned into a radioactive wasteland if you don’t act right now? Kick in the damn door!

Our law has always recognized “exigent circumstances” as part of the reasonableness analysis.

So this is where the divergence of reasonable people disagreeing begins. Is this county now under such threat that a nationwide “exigent circumstance” exists? Some say yes…some say no. But is it “clear”? I say no to that position.

If/when New York goes up in a nuclear fireball (don’t laugh, that is a clearly stated public objective and to cavalierly dismiss the intended act is naive), then I would say most would agree that such exigent circumstances existed.

I would much rather we continue to debate this issue than agree. For the cost of the act required to bring about agreement here is too high.

May God forbid it.


Ron said...


Great comments on this story. I personally can't believe the TSA still does completely random screening at the airports. When arguing for intelligent screening, I give examples of police work and what would the police do if they had to look for criminals in a random way, rather than using factors such as race, sex, etc. in finding the suspects.

Anonymous said...

Ron and L.S. want to turn this country into a police state. WE do not need the KGB in the U.S.

Trampling on the civil rights of minorities who are being profiled is just wrong. You two need to attend some ACLU meetings and become "educated."


Anonymous said...

I agree that “trampling on the civil rights of minorities who are being profiled is just wrong”. I don’t really see where I have contended anything otherwise. Further, I don’t see where I have advocated a police state and I agree that we don’t need the KGB here.

So I am somewhat befuddled as to where your apparent misunderstanding of my position comes from. So I’ll try to state it a bit shorter and clearer:

Target people’s behavior, not their status, and…while doing this…don’t exclude them from scrutiny because of their status.

If you would be so kind as to critique my position in a bit more detail, it would help me understand yours.



Ron said...


I'm not sure whether to take your comment seriously or as a joke, so I will consider it a joke for now.

Anonymous said...

You all know that da patriot act is not about football. It is about listening in on phone calls and searches without warrants. Who all is this happening to? Minorities. Plain and simple fool.

You guys need some enlightment. ACLU could even open your eyes.


Anonymous said...

If I may provide some assistance with the English language, I would guess that the “da” is intended to be “the”, and they’re not interchangeable. In fact, I don’t know if “da” is really a word intended to convey meaning rather than just represent a sound…just food for thought.

Yes, I know The Patriot Act is not about football. And it is, in part, about listening to phone calls, I get that. And that may be a point of contention. I don’t agree that that’s a problem, but I do see where reasonable people could disagree on the point. And those who disagree with me are not fools.

As for a dipartite impact on minorities such that the law is constitutionally deficient solely on that ground, I don’t agree.

Rape laws have a disparate impact on males. That’s life. They don’t target males, they target behavior. It’s just an inadvertent impact that males are disproportionally impacted. That’s life. Prostitution laws have a disparate impact on females. Same analysis as above. And many other laws have similar effect.

A proper question to place this in context may be along the lines of:

Is the threat against the United States so grave and imminent that it is reasonable to conduct surveillance in this manner?

When your enemies want to spray Los Angeles with anthrax powder and kill millions, when they want to nuke San Francisco, when they want to poison salt shakers in Chicago, when they want to _______ (fill in blank with heinous act of mass destruction) you might just need to know who’s doing what. Might not be a bad idea.

In fact, if you’re one of the protectors as opposed to one of the protected, you might just be derelict in your duty if you failed to try.

If it was my decision, I would make a good faith attempt to obtain this intelligence via the method presented. If, at the end of the day, it won’t fly…oh well, we tried.

That way when it happens again, and our enemies say it will God willing, the American people have said, “We rather have New York nuked than have overseas phone calls listened to.” Wrong decision I think. But theirs to make.

Remember, we are at war. Just because those charged with protecting you (that’s right, you) have so far been rather successful up to this point does not mean that our enemies can’t deliver a devastating strike. They just have not been able to do so…yet.

I contend that under the unique and particular exigencies of this global threat, The Patriot Act is not unreasonable.

I get that many people disagree with me. And they’re not fools. I think that perhaps their world view is formed from being too sheltered, protected, have no real understanding of what it means to fight an enemy, have never tasted their own blood in their mouth as they fought for their lives, have no real understanding that people want to kick down their doors as they sleep and cut everyone’s head off with a dull knife from the front, nuke their city, ….

It’s called war. And it sucks.


Rommie said...

Growing up on the streets you learn what blood tastes like real early in life. Education on the streets is more important then in the class in my hood.Many do not even know how to read let alone type. But they know how to survive and they know what is right and what is justice.

What good is a free country if it ain't free? Why fight to protect freedom only to have it taken away from the citizens by their own government?


Anonymous said...

I know that the streets can be a real hard “classroom”. But such an “education” does not have to be exclusive of more formal education. They are not mutually exclusive. One can have both…if one wants to.

As for what is right and what is justice, I agree that they should be placed on a pedestal and protected.

And we do have a free county. The best and the freest that humans have thus far designed. We are free the speak our minds on this blog, to disagree with our government and each other, to discuss what we dislike about our leaders, to dispute their actions and their motives, to petition our government for a redress of our grievances, to speak our minds, to bear arms in our homes and our fields, to publish, to worship….the list goes on…we are free. And God has blessed America.

But we have never been free to advocate the overthrow of our constitutional republic by force, violence, and the destruction of this nation. That is what our enemies advocate…and that is who and what we are trying to investigate.


Jonescaaz said...

Liberal judges and Democrats try to put America at risk by fighting anti-terrorist measures, is what the title should be.

Anonymous said...

Sounds about right for a new title