[Infowarrior] - Bush Administration Appeals Patriot Act Ruling

[Richard Forno]

Bush Administration Appeals Patriot Act Ruling
By David Kravets EmailFebruary 08, 2008 | 7:44:51 PMCategories: Surveillance

http://blog.wired.com/27bstroke6/2008/02/bush-administra.html

The Bush administration on Friday appealed a federal court decision
declaring as unconstitutional a central provision of the Patriot Act, which
Congress quickly adopted after the Sept. 11 terror attacks.

At issue is a September ruling by an Oregon judge who said the Patriot Act
gave too much power to the government when it came to snooping on suspected
criminals in the United States -- a violation of constitutional
search-and-seizure rules.

The administration is asking the San Francisco-based, 9th U.S. Circuit Court
of Appeals to overturn U.S. District Judge Ann Aiken. The judge ruled that
the Patriot Act made it too easy for the government to secure warrants
against criminal suspects from a secret court designed to help the
authorities monitor and gather intelligence on terror suspects.

The secret court, known as Foreign Intelligence Surveillance Court, was
established after the passage of the 1978 Foreign Intelligence Surveillance
Act. Weeks following the 2001 terror attacks, Congress amended that law from
allowing warrants if "foreign intelligence information" is the "primary
purpose" of the search or surveillance to foreign intelligence being a
"significant purpose."

That opened the door for the government to obtain search and surveillance
warrants to investigate criminal cases on U.S. soil without having to
demonstrate probable cause, as required under the Fourth Amendment, U.S.
District Judge Ann Aiken ruled in September.

Unlike search and surveillance warrants doled out against criminal suspects
by federal judges, the secret court hands out warrants without even asking
what probable cause the government has. Also, the government is not required
to disclose what it is searching for or what it found.

"Since the adoption of the Bill of Rights in 1791, the government has been
prohibited from gathering evidence for use in a prosecution against an
American citizen in a courtroom unless the government could prove the
existence of probable cause that a crime has been committed," Aiken ruled.

In a 100-page brief, (giant .pdf) the Bush administration said Aiken's
ruling "is the first ever to find a constitutional defect in FISA, and the
constitutional rule that it adopts has damaging implications for national
security."

The case concerned Brandon Mayfield, a Portland, Oregon attorney who the
authorities arrested and held for two weeks in May, 2004. The FBI alleged
his fingerprint was found in Madrid, at the scene of a train bombing that
killed 191 people two months before.

The authorities obtained FISA warrants authorizing electronic surveillance
and physical searches of the attorney's home and office.

Two weeks after he was detained and held as a material witness in a grand
jury investigation, the U.S. government freed him. The fingerprint in
question matched a fingerprint of a suspected Algerian terrorist.

The government settled his lawsuit for $2 million. But Mayfield litigated
the provision of the Patriot Act that the judge declared as
unconstitutional.