Patriot Act Erodes

A judge in Oregon has further eroded the Patriot Act.

A federal judge in Oregon ruled Wednesday that crucial parts of the USA Patriot Act were not constitutional because they allowed federal surveillance and searches of Americans without demonstrating probable cause. The ruling by Judge Anne L. Aiken of Federal District Court in Portland was in the case of Brandon Mayfield, a lawyer in Portland who was arrested and jailed after the Federal Bureau of Investigation mistakenly linked him to the Madrid train bombings in March 2004. “For over 200 years, this nation has adhered to the rule of law — with unparalleled success,” Judge Aiken’s opinion said in finding violations of the Fourth Amendment prohibitions against unreasonable search and seizure. “A shift to a nation based on extraconstitutional authority is prohibited, as well as ill advised.” - The New York Times

What is interesting about this case is that the defendant reached a settlement with the government before this case went through it's court process, but the settlement explicitly allowed this case to go forward to test the legality of the Patriot Act.

Mr. Mayfield sued the government, which apologized and agreed to a $2 million settlement last November. The settlement included an unusual condition that freed the government from future liability with one exception. Mr. Mayfield was allowed to continue a suit seeking to overturn parts of the Patriot Act. It was that suit on which Judge Aiken ruled Wednesday.

The mechanisms of democracy often work slowly, but they do work. Our Courts are reconsidering so many of the laws passed in the past six years which have limited cherished constitutional protections. At the end of the day, without Constitutional amendments the rights we have are limited to the rights the Courts say we have. This is why the makeup of the U.S. Supreme Court is a voting issue in 2008, and this is why the Senate's "Advise and Consent" role in appointing judges is so critical.

At some point in the next few years, there will be a case before the Supreme Court which bundles many of the District Court level opinions about the Patriot Act and other bills of the post-9/11 era, and that case will set the precedent for the liberties our children grow up with. I will be a father this year, and I want my children to have all the rights I do today.(Heck, I want them to have all the rights I had in 1997!)

Incidentally, the language in the judge's decision is lyrical and inspiring, as so many decisions in this area have been recently. We are lucky that our judges and justices have given us so many wonderfully quotable phrases to use.

Significantly, a seemingly minor change in wording has a dramatic and significant impact on the application of FISA. A warrant under FISA now issues if "a significant purpose" of the surveillance is foreign intelligence. Now, for the first time in our Nation's history, the government can conduct surveillance to gather evidence for use in a criminal case without a traditional warrant, as long as it presents a non-reviewable assertion that it also has a significant interest in the targeted person for foreign intelligence purposes.

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. The hard won legislative compromise previously embodied in FISA reduced the probable cause requirement only for national security intelligence gathering. The Patriot Act effectively eliminates that compromise by allowing the Executive Branch to bypass the Fourth Amendment in gathering evidence for a criminal prosecution.
...
It is notable that our Founding Fathers anticipated this very conflict as evidenced by the discussion in the Federalist Papers. Their concern regarding unrestrained government resulted in the separation of powers, checks and balances, and ultimately, the Bill of Rights. Where these important objectives merge, it is critical that we, as a democratic Nation, pay close attention to traditional Fourth Amendment principles. The Fourth Amendment has served this Nation well for 220 years, through many other perils. - Mayfield et. al., vs. U.S.A., Opinion and Order

Furthermore, if you want to know exactly how the FISA process works, there's an in-depth explanation of the whole FISA system starting on page 15 of the Opinion.

I am hopeful that these courageous judges deciding the cases in favor of our liberty will be on the short-list for the Supreme Court when the next opening on that panel arrives.