Oregon Judge: Parts of Patriot Act Are Unconstitutional

A federal judge in Oregon has struck down parts of the Patriot Act after ruling they violated the 4th Amendment, the Oregonian reports:

An Oregon judge Wednesday struck down a key portion of the USA Patriot Act, ruling that it violated the U.S. Constitution's ban on unreasonable search and seizure.

U.S. District Judge Ann Aiken ruled that the Patriot Act gives federal agents too much unchecked power in conducting criminal investigations of U.S. citizens.

"The (government) 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," Aiken wrote.

"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."

The ruling specifically concerns the Patriot Act's amendments to the FISA program:

Before the Patriot Act, Aiken wrote, "the three branches of government operated with thoughtful and deliberate checks and balances -- a principle upon which our nation was founded. These constitutional checks and balances effectively curtail overzealous executive, legislative, or judicial activity regardless of the catalyst for over-zealousness. The Constitution contains bedrock principles that the framers believed essential. Those principles should not be easily altered by the expediencies of the moment."

The Patriot Act, passed in the wake of the Sept. 11 terrorist attacks, expanded the power of federal agents to pursue suspected terrorists in a variety of ways. A key change involved the Foreign Intelligence Surveillance Act, which allows federal agents to get a warrant to search for foreign intelligence.

Foreign intelligence warrants do not require evidence that a crime has been committed, but merely that the subject is an agent of a foreign power. The Patriot Act also made it easier to use foreign intelligence warrants to collect information for criminal prosecution.

The lawsuit was brought by Oregon lawyer Brandon Mayfield after he was mistakenly identified as a terrorist linked to the Madrid train bombings:

Mayfield was an obscure Oregon lawyer when the FBI concluded shortly after the Madrid terrorist attacks that his fingerprint matched one found near the bombings.

Federal agents obtained a warrant under the Foreign Intelligence Surveillance Act to search Mayfield's house and office and conduct surveillance.

Mayfield, a Muslim, was later taken into custody as a material witness, but he was released and exonerated after Spanish authorities determined that his fingerprint was not a match.

Mayfield sued.

He said the Patriot Act changed the Foreign Intelligence Surveillance Act to allow federal agents to bypass the Constitution's requirements for getting a criminal warrant.

Read the rest. Discuss.

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    This is heartening although it remains to be seen what may come out of an appeals process, if any.

    Does anybody know what kind of weight this will carry in jurisdictions other than that of Judge Aiken's court?

    Also, in one way it seems to lend weight to the arguments by Miles and Big Barton on other threads counseling recourse to the courts as opposed to congressional hearings directed toward possible impeachments.

    But in another way I wonder if it really does? Mayfield's case, like that of 4th amendment issues around Al Haramein (sp.?) turn on government slip-ups that have enabled Mayfield to get standing and at least arguments about jurisdiction to arise in the other case. So much of the administration's repressive legislation (shamefully passed by Congress) is designed exactly to thwart the gaining of knowledge that would be necessary to establish a claim of a wrong needed to get standing.

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    I'm sure the government will appeal this one all the way to the US Supreme Court. Given that fact that the US Supreme Court is now pretty much Bush's lacky, I don't see how this will stand unfortunately. I hope I'm wrong, but I have little faith in what's left of our government.

    If it does, it will be a huge loss and embarrassment for the Bush Administration (as if they don't have enough already). The only way I can think of that this will change is when come 2009, the occupants of the White House change.

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    Does anybody know what kind of weight this will carry in jurisdictions other than that of Judge Aiken's court?

    It is not binding as precedent but judges in other district courts can adopt the same reasoning if they find it persuasive. Things don't get really interesting until the 9th Circuit upholds it. But if there's any circuit that could, it's the 9th.

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    Posted by: Stephanie V | Sep 27, 2007 2:38:08 PM Things don't get really interesting until the 9th Circuit upholds it. But if there's any circuit that could, it's the 9th.

    Agreed, which is why the looney-right (the FoxNews crowd) want desperately to break-up the 9th.

  • Big Barton (unverified)

    Elden Rosenthal and his team did an amazing job in this case. And God bless Judge Aiken.

    The current Supreme Court is conservative, but I seriously doubt the Solicitor General's office considers the Court Bush's lackey.

    And for what it's worth, I think there is a good argument to be made for breaking-up the 9th Circuit, but this question seems a bit off topic from this post.

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    (A pal of mine is a magistrate judge in a state which I will not name but which is within the ambit of the 9th Circuit. He regularly attends the 9th Circuit conferences and says they really know how to party.)

  • Big Barton (unverified)

    No kidding - who would have guessed?

  • Chuck Butcher (unverified)

    'Conservative' courts can bite the government hand, it is their nature to distrust governmental interference and overstepping fairly clear Consitutional issues. The big problem is what are today considered "wiggle" words in the BOR. "Unreasonable" is one of those words, there'd have been gunfire by the Revolutionaries over some of the "reasonable" things in the last 30 years.

    <h2>Some of the adament opposition to the Patriot Act turns right around and uses the same techniques against guarantees they don't like. That is foolishly dangerous, as BushCo has proven. But how many applauded RICO when the Mafia was a "threat"? It comes back to haunt you, being free is a risky proposition, you want something else - then it doesn't involve freedom. Next time somebody says something like, "the Second Amendment allows the National Guard," maybe you'll know how to react.</h2>
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