Two Patriot Act Provisions Ruled Unlawful
CBS Radio/AP
Associated Press Writer
September 27, 2007

PORTLAND, Ore. (AP) -- A federal judge issued a stern rebuke of a key White House antiterror law, striking down as unconstitutional two pillars of the USA Patriot Act. U.S. District Judge Ann Aiken ruled that using the act to authorize secret searches and wiretapping to gather criminal evidence - instead of intelligence gathering - violates the Constitution.

"For over 200 years, this nation has adhered to the rule of law - with unparalleled success," the judge wrote Wednesday. "A shift to a nation based on extra-constitutional authority is prohibited, as well as ill-advised."

The case began when the FBI misidentified a fingerprint in the Madrid train bombings that killed 191 people in 2004, leading investigators to a Portland attorney whose home and office were secretly searched and bugged.

The FBI eventually apologized to the attorney, Brandon Mayfield, for its mistake and the federal government settled his lawsuit for $2 million.

But Mayfield challenged the Patriot Act over the searches and surveillance, claiming various civil rights violations.

By asking her to dismiss Mayfield's lawsuit, the judge said, the U.S. attorney general's office was "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 said using the act to authorize secret searches and wiretapping to gather criminal evidence violates the constitutional protection against unreasonable searches and seizures.

Elden Rosenthal, an attorney for Mayfield, issued a statement on his behalf praising the judge, saying Aiken "has upheld both the tradition of judicial independence, and our nation's most cherished principle of the right to be secure in one's own home."

Justice Department spokesman Peter Carr said the agency was reviewing the decision. He declined to comment further.

The case shows that pushing the Patriot Act to the limit may backfire on the Bush administration, said Garrett Epps, a constitutional law expert at the University of Oregon.

"They've been so aggressive in their assertions of statutory and constitutional authority that it has alienated courts," Epps said. "Judges just don't trust them. The Bush administration has shot itself in the foot."

Although the ruling was not expected to have any immediate effect on enforcement under the Patriot Act, it could have a major impact if it is appealed and upheld, said Michael Greenberger, director of the Center for Health and Homeland Security at the University of Maryland.

He called Aiken's analysis of the law "extraordinarily sound" and said the bungled government investigation opened the door to the Patriot Act challenge by finally allowing someone to show the government is using a secret court called the Foreign Intelligence Surveillance Court to bypass the Constitution.

"The high irony of this is that, if the government had never heard of Brandon Mayfield, they would not have this ruling today," Greenberger said. "They essentially got caught with their pants down."

The Mayfield case was the second major legal setback for the administration this month after the ACLU won a Patriot Act challenge in New York on behalf of an Internet service provider that was issued a "national security letter" demanding customer phone and computer records. The federal judge in that case ruled the FBI must justify to a court the need for secrecy for more than a brief and reasonable period of time.

The Mayfield case has been an embarrassment for the federal government. Last year, the Justice Department's internal watchdog faulted the FBI for sloppy work in mistakenly linking Mayfield to the Madrid bombings. That report said federal prosecutors and FBI agents had made inaccurate and ambiguous statements to a federal judge to get arrest and criminal search warrants against Mayfield.

Congress passed the Patriot Act with little debate shortly after the Sept. 11, 2001, attacks to help counter terrorist activities. It gave federal law enforcers the authority to search telephone and e-mail communications and expanded the Treasury Department's regulation of financial transactions involving foreign nationals. The law was renewed in 2005.

In early August, the Bush administration persuaded lawmakers to expand the government's power to listen in on any foreign communication it deemed of interest without a court order, even if an American was a party. The expanded surveillance authority expires early next year. As Congress takes a closer look at the law, many Democrats want to rein in language that many consider overly broad.

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