Page 1 of 2 12 LastLast
Results 1 to 15 of 17
  1. #1
    Joined
    Oct 2003
    Posts
    8,887

    Post Judge Rules 2 Patriot Act Provisions Unlawful

    http://www.foxnews.com/story/0,2933,298210,00.html

    Good news.

    PORTLAND, Ore. Two provisions of the USA Patriot Act are unconstitutional because they allow search warrants to be issued without a showing of probable cause, a federal judge ruled Wednesday.
    Spoiler!
    Promote then, as an object of primary importance, institutions for the general diffusion of knowledge. In proportion as the structure of a government gives force to public opinion, it is essential that public opinion should be enlightened.

  2. #2
    Joined
    Jun 2004
    Location
    In a house
    Posts
    5,755

    Re: Judge Rules 2 Patriot Act Provisions Unlawful

    Justice Department spokesman Peter Carr said the agency was reviewing the decision, and he declined to comment further
    does that mean business as usual? was the ruling just a symbolic thing?

  3. #3
    Joined
    Nov 2001
    Location
    Montana
    Posts
    7,743

    Re: Judge Rules 2 Patriot Act Provisions Unlawful

    That's a totally different deal.

    Mayfield sued because the FBI misread a fingerprint then ran with the conclusions, physically searching Mayfield's home and office without obtaining a warrant.

    And I say good for him, and good for Judge Aiken.
    Tyan S5397 2x X5450 16GB - SuperMicro H8DCI 2x 275 8GB - Iwill DK8X 2x Opteron 250 2GB


    Take a Kid FISHING!

  4. #4
    Joined
    Aug 2001
    Posts
    74,682

    Re: Judge Rules 2 Patriot Act Provisions Unlawful

    Is it different? Damn. Ill search some more. All I could find. I was trying to fill in some info to the FOX story...my whoops. Ill yank those posts. They had two entries at how appealing

    "Judge rejects portion of Patriot Act; The law gives federal agents too much power, the ruling says, supporting Oregon lawyer Brandon Mayfield's challenge": This article appears today in The Oregonian. The New York Times reports today that "Judge Rules Provisions in Patriot Act to Be Illegal."
    And The Washington Post reports that "Patriot Act Provisions Voided; Judge Rules Law Gives Executive Branch Too Much Power."
    My earlier coverage of yesterday's ruling of the U.S. District Court for the District of Oregon appears at this link.
    Posted at 08:45 AM by Howard Bashman

    [bang head] I followed this

    "Justice Dept.'s warrantless eavesdropping rejected": Declan McCullagh of c|net News.com provides this report.
    Posted at 08:09 AM by Howard Bashman
    Last edited by jimzinsocal; 09-27-2007 at 08:58 AM.

  5. #5
    Joined
    Nov 2001
    Location
    Montana
    Posts
    7,743

    Re: Judge Rules 2 Patriot Act Provisions Unlawful

    Well they were probably still applicable... Never really heard anymore about those. It's safe to say that all communications via phones are monitored, the question is 'Is it legal, or right?' Listening to touch-tones for content...but not voice content? right.....

    I like the focus of Mayfield's suit, and it's high time it was addressed. Most of the PA was pretty good, but Mayfield's going after the weak (constituitionally) parts.
    Tyan S5397 2x X5450 16GB - SuperMicro H8DCI 2x 275 8GB - Iwill DK8X 2x Opteron 250 2GB


    Take a Kid FISHING!

  6. #6
    Joined
    Aug 2001
    Posts
    74,682

    Re: Judge Rules 2 Patriot Act Provisions Unlawful

    Wait a sec. Am I reading right that they did get a warrant?

    Yes.

    Aiken’s ruling came in the case of Brandon Mayfield, a lawyer who was arrested and jailed for two weeks in 2004 after the FBI bungled a fingerprint match and mistakenly linked him to a terrorist attack in Spain. The FBI used its expanded powers under the Patriot Act to secretly search Mayfield’s house and law office, copy computer files and photos, tape his telephone conversations, and place surveillance bugs in his office using warrants issued by the Foreign Intelligence Surveillance Court.
    In a settlement announced in November 2006, the U.S. government agreed to pay $2 million to Mayfield and his family and it apologized for the “suffering” that the case caused him. But the pact allowed Mayfield to proceed with a legal challenge to the constitutionality of the Patriot Act, resulting in yesterday’s ruling by Aiken, who was nominated to the bench by President Bill Clinton in 1997.
    Last edited by jimzinsocal; 09-27-2007 at 09:42 AM.

  7. #7
    Joined
    Aug 2001
    Posts
    74,682

    Re: Judge Rules 2 Patriot Act Provisions Unlawful

    So I guess here is where Im at with this.

    One Judge says this is all wrong despite another Judge allowing the investigation to proceed.

    And I sift away all the 20 20 look back when I think about the law itself.

    Would the discussion continue "had" the fingerprints matched?

    I think the case says more about a screwed up investigation
    than the laws that allowed it to proceed.
    And because of what happened to this particular guy.

    Shall we also do away with all murder laws based on the very few
    "exceptions"?

  8. #8
    Joined
    Mar 2002
    Location
    California
    Posts
    26,155

    Re: Judge Rules 2 Patriot Act Provisions Unlawful

    Well they botched the fingerprints and have been made to compensate the guy they incorrectly jailed.... good. Aside from that the only thing I'm seeing here is another District Judge who's decision is not going to go the distance. Enjoy whats sure to be a short lived "victory" Orang.
    "The most dangerous myth is the demagoguery that business can be made to pay a larger share, thus relieving the individual. Politicians preaching this are either deliberately dishonest, or economically illiterate, and either one should scare us...
    Only people pay taxes, and people pay as consumers every tax that is assessed against a business."


    -The Gipper


  9. #9
    Joined
    Aug 2001
    Posts
    74,682

    Re: Judge Rules 2 Patriot Act Provisions Unlawful

    [Orin Kerr, September 27, 2007 at 11:59am] Trackbacks
    My Analysis of the Oregon FISA Decision: Yesterday, Judge Aiken of the U.S. District Court in Oregon handed down a decision that strikes down Foreign Intelligence Surveillance Act's provisions for granting warrants. In this post, I wanted to explain the issue in the case and the decision's reasoning, and then I wanted to offer some commentary on the decision. My tentative bottom line: I found Judge Aiken's decision unpersuasive on the question of Article III standing. On the merits of the Fourth Amendment issue, I think the law is just too murky to call this one way or the other: Judge Aiken's result appears plausible, although so does the contrary result embraced in 2002 by the Foreign Intelligence Court of Review.

    1. Statutory Background
    First, some background. The Foreign Intelligence Surveillance Act is the law the government uses to get warrants to monitor suspects terrorists and spies inside the United States. Before the Patriot Act, the government could obtain a FISA warrant to search or monitor someone based on a probable cause showing that the person "is a foreign power or an agent of a foreign power and that the primary purpose of the surveillance is to obtain foreign intelligence information." The basic idea was that the government had to believe the person was a spy or terrorist (an agent of a foreign power) and that the real reason behind the evidence collection had to be to to protect national security by having the information (that is, so the government can know what the spies and terrorists are doing).

    The Patriot Act changed that standard, and it's those changes that are the issue in the new case. The Patriot Act changed the language so that the standard for obtaining a evidence is probable cause showing that the person "is a foreign power or an agent of a foreign power and that a significant purpose of the surveillance is to obtain foreign intelligence information." The difference is subtle: the change from "the primary" to "a significant."

    Why the change? The basic idea is to allow the government can get a warrant to monitor spies and terrorists without knowing ahead of time whether it wants to just collect information and keep it or whether it wants to bring a criminal prosecution. Before the Patriot Act, the government had to choose at the beginning whether to take the criminal law route with traditional warrants (based on probable cause that the search would reveal evidence of a crime) or whether to take the FISA route and collect evidence to learn of terrorist plans without thinking about a possible criminal prosecution.

    After the Patriot Act, the government can get a FISA warrant in a terrorism investigation and keep open whether it wants to treat the case as a crimal case or an intelligence case. The intelligence information can go to the intelligence agencies, and the evidence of crime can go to the criminal investigators.

    The Fourth Amendment issue raised in the Mayfield case is whether a warrant issued under the amended Patriot Act standard is good enough for Fourth Amendment purposes or whether it is too "loose" a standard to make FISA searches constitutionally reasonable.
    2. The Mayfield Case
    This case is a civil lawsuit by Brandon Mayfield, an Oregon attorney who was surveilled and lated arrested and detained for two weeks as part of an investigation into the 2004 Madrid train bombings. It turned out that Mayfield had nothing whatsoever to do with the bombings, and he was released. After he was released, he sued the government on a range of claims. The only issue left at this stage of the game is Mayfield's Fourth Amendment claim.

    Mayfield's Fourth Amendment claim is somewhat unusual. He does not argue that the government violated FISA when it obtained orders to monitor him and search his home. Nor does he argued that his particular Fourth Amendment rights were violated in an as applied manner, the usual argument in Fourth Amendment cases. Rather, he argues that the Patriot Act amendments to the Foreign Intelligence Surveillance Act made FISA warrants constitutionally inadequate as facial matter, such that the FISA warrants that were used to authorize surveillance of him were unlawful. This particular opinion concerns Mayfield's request for declaratory judgment that the Patriot Act amendments to FISA are constitutionally inadequate under the Fourth Amendment.

    Judge Aiken granted the request, and struck down what is really the heart of FISA — the provisions allowing the FISA court to issue search warrants both for physical searches and for electronic surveillance. There were two main issues in the opinion: First, did Mayfield have standing under Article III to bring the case, and second, did the FISA law actually violate the Fourth Amendment.

    a) Standing

    Judge Aiken ruled that Mayfield did have standing to challenge the facial constitutionality of FISA because the government retained derivative evidence from the wiretapping against him. That is, the government still had in its files records of items that had been collected from him. According to Judge Aiken, this continuing possession of information in their files established an ongoing injury in fact. Further, the injury in fact would be cured if Mayfield won the case, Judge Aiken ruled: "it is reasonable to assume that [if Mayfield wins,] the Executive Branch of the government will act lawfully and make all reasonable efforts to destroy the derivative materials when a final declaration of the unconstitutionality of the challenged provisions is issued." According to Judge Aiken, the government's possession of derivative evidence and the possibility they would be destroyed if Mayfield won conferred Article III standing.

    b) The Fourth Amendment

    Judge Aiken then reaches the merits, and concludes that the Fourth Amendment does not permit the government to obtain warrants based on probable cause to believe that a person is an agent of a foreign power if foreign intelligence collection is only a significant purpose of the monitoring. This standard lets the government search the homes and listen in on the calls of terrorist suspects and spies when the government is planning on bringing a criminal prosecution in the case. But that's not good enough, Judge Aiken concludes: If the government is really approaching an investigation of a terrorist suspect or spy with an eye to charging them with a crime, they need to follow the traditional criminal law standard for a warrant. That is, they need to obtain a warrant under the standard of probable cause to believe a crime was committed, not probable cause to believe the person is a terrorist or a spy.

    Judge Aiken notes that her conclusion is contrary to the legal ruling of the Foreign Intelligence Surveillance Court of Review decision in In Re Sealed Case. She concludes that In re Sealed Case is incorrect, and that the FISCR's analysis is unpersuasive. Because the current version of FISA adopts the Patriot Act standard, the provisions of FISA that authorize FISA warrants to be issued are invalid.

  10. #10
    Joined
    Aug 2001
    Posts
    74,682

    Re: Judge Rules 2 Patriot Act Provisions Unlawful

    ^^continied

    3. My Take
    There are two issues here, standing and the Fourth Amendment. I am no standing expert, but Judge Aiken's analysis of standing and ripness seemed quite weak and unpersuasive to me. On the other hand, I thought her Fourth Amendment analysis was plausible on existing precedents but that the issue was too murky to call one way or the other.

    a) Standing

    I find myself puzzled by Judge Aiken's view that Mayfield has standing to bring a facial challenge to FISA because the government apparently coninues to possess "derivative evidence" of the earlier FISA searches. As I understand it, the claim is that there are government agencies that still have files on Mayfield that contain information about the monitoring and searching of him. I'm not a standing expert, but I don't understand why that could be a continuing injury in fact: what is the "concrete" and "particularized" injury to Mayfield if somewhere there is a file that has information about him?

    Under Judge Aiken's approach, it would seem that everyone who was investigated in the past has ongoing injury in fact: Investigators keep files, and those files say what the investigators learned. Does the fact that somewhere some government computer has a record create an ongoing, concrete, and particularized injury in fact? I find this unlikely. (As an aside, I wonder how this applies to human memory. If an agent remembers what he saw inside Mayfield's house, does the presence of that memory, stored as a network of neurons in the "computer" of the agent's mind, create an ongoing injury in fact?)

    I was particularly unpersuaded by Judge Aiken's conclusion that it is "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision," as required for standing by Lujan. Judge Aiken's theory here is obviously speculative: she hypothesizes that "it is reasonable to assume that [if Mayfield wins,] the Executive Branch of the government will act lawfully and make all reasonable efforts to destroy the derivative materials when a final declaration of the unconstitutionality of the challenged provisions is issued."

    But why? I don't think I have ever heard of "purge of the files" as a Fourth Amendment remedy. True, Rule 41 of the Federal Rules of Criminal Procedure permits a suspect to file a motion for return of property unlawfully seized by a warrant search; if granted, the remedy is return of the property. But I don't think I have ever heard of the government actually purging its files of all evidence or derivative evidence from a search — every report, every mention, etc. The standard available remedies in Fourth Amendment cases are suppression of evidence and civil damages: Is there now some kind of Constitutional requirement that all data collected has to be deleted, as well? Perhaps legislatures or courts should create such a requirement — very interesting question, I think — but Judge Aiken's expectation that the government would sort of "do the right thing" and delete the files struck me as precisely the kind of speculation that does not satisfy Article III standing requirements.

    b) The Fourth Amendment

    The Fourth Amendment issues here are trickier, I think. My tentative bottom line is that this issue is just really murky and there is no clearly correct answer: reasonable minds can differ.

    Why do I think that? The problem is the fundamental murkiness of the U.S. Supreme Court's decision in the Keith case in 1972. It's one of these early 70s Powell opinions that leaves you scratching your head as to what it means. (Powell had just become a Judge, and I think his early opinions in particular reflect him struggling with the craft.) In that case, the U.S. Supreme Court held that if the government wants to wiretap members of a purely domestic group for national security reasons — that is, a group unrelated to any foreign power — it needs a warrant but the warrant doesn't need to be a traditional criminal law warrant. Some kind of "reasonable" warrant procedure was enough.
    [W]e do not hold that the same type of standards and procedures prescribed [in criminal cases under the Wiretap Act, known as "Title III"] are necessarily applicable to this case. We recognize that domestic security surveillance may involve different policy and practical considerations from the surveillance of "ordinary crime." The gathering of security intelligence is often long range and involves the interrelation of various sources and types of information. The exact targets of such surveillance may be more difficult to identify than in surveillance operations against many types of crime specified in Title III. Often, too, the emphasis of domestic intelligence gathering is on the prevention of unlawful activity or the enhancement of the Government's preparedness for some possible future crisis or emergency. Thus, the focus of domestic surveillance may be less precise than that directed against more conventional types of crime.

    Given these potential distinctions between Title III criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III. Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection.

    . . . It may be that Congress, for example, would judge that the application and affidavit showing probable cause need not follow the exact requirements of 2518, but should allege other circumstances more appropriate to domestic security cases; that the request for prior court authorization could, in sensitive cases, be made to any member of a specially designated court (e.g., the District Court for the District of Columbia or the Court of Appeals for the District of Columbia Circuit); and that the time and reporting requirements need not be so strict as those in 2518.
    The FISA statute is dealing with a slightly different issue: It is dealing with warrants for "foreign" intelligence collection, not "domestic" intelligence collection, the issue in the Keith case. The U.S. Supreme Court has never decided whether some kind of warrant is needed for the collection of foreign intelligence collection, and if so, what kind of warrant is needed. There are some pre-FISA circuit court precedents that allow totally warrantless monitoring in some circumstances, but they don't address the constitutionality of the FISA standard under Keith.

    But you can see the murkiness of the issue: According to Justice Powell's reasoning in Keith, the government needs to chose a legal standard that is "reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection." That doesn't give us much guidance at all, so it's not too surprising that you would have disagreement as to whether the Patriot Act's standard is permitted. The Foreign Intelligence Court of Review reached one conclusion; Judge Aiken reached another; and I don't think the existing legal materials really give us very firm guidance as to which of those decisions is more correct under existing law. I did find some of the characterizations of the FISA law in Judge Aiken's decision to be incorrect, but I think there's room in the cases to come out the way she does.

    I should say that as a matter of policy, I think the Patriot Act amendment to FISA is a good idea. If the government can establish probable cause to believe someone is a terrorist or a spy possessing foreign intelligence information, that should be enough to monitor them; allowing the government to then use the evidence to prosecute the terrorist or spy in a criminal case seems sensible to me. Indeed, there is an apparent irony in this entire topic: Here the government actually wants to use the criminal court system in terrorism cases, which is usually seen among civil libertarians as a positive thing. Forcing the government to conduct monitoring entirely outside the criminal court system seems unnecessary and unwise to me.

    Nor am I particularly persuaded that this is "watering down" the traditional Fourth Amendment warrant process. First, the government still needs to establish probable cause to a federal judge that someone is a terrorist or a spy with foreign intelligence information; that's not exactly a low standard, as the FISCR properly recognized. It seems unlikely to me that the government would seek to circumvent the traditional Fourth Amendment standard of pc that a person committed a crime (however minor) simply by establishing pc that a person was a terrorist or a spy; if that's an easier threshold to meet, it's not clear to me why.

    Second, the Keith case that first held that there was a warrant requirement at least in domestic intelligence cases was also quick to say that it wasn't the same warrant requirement as applies in criminal cases. So if there was a watering down, it was in the same Keith case that first imposed warrant requirement in the first place. Anyway, that's how I tend to approach the policy question (although I take it as a given that my answer to the policy question isn't relevant to the issue of whether Judge Aiken's decision is right or wrong as a matter of Constitutional law-- except to the extent it would inform how I personally might balance reasonableness if I were the one wearing the robe, which I'm not).

  11. #11
    Joined
    Nov 2001
    Location
    Montana
    Posts
    7,743

    Re: Judge Rules 2 Patriot Act Provisions Unlawful

    The specifics of the civil case are irrefuted, and have already been settled.

    This ruling was about the challenge to the PA and FISA. Voluk says a lot, but I find his failure to recognize that the FBI's still having evidence and copies of evidence retrieved from the searches as providing 'standing' laughable. His privacy and effects were compromised (and still are) as a direct result of the FBI's errors.

    I think it'll be an interesting challenge to these sections of the PA, as all the FBI has done is demonstrate their ability to abuse the law in such a manor as it flies in the face of the fourth amedment.
    Tyan S5397 2x X5450 16GB - SuperMicro H8DCI 2x 275 8GB - Iwill DK8X 2x Opteron 250 2GB


    Take a Kid FISHING!

  12. #12
    Joined
    Aug 2001
    Posts
    74,682

    Re: Judge Rules 2 Patriot Act Provisions Unlawful

    Now my understanding is all the records have been nixed/destroyed...and as I read earlier the FBI said as much.
    I think that what Kerr was getting at. In other words the government accomplished the correct solution.

    Like so

    I find myself puzzled by Judge Aiken's view that Mayfield has standing to bring a facial challenge to FISA because the government apparently coninues to possess "derivative evidence" of the earlier FISA searches. As I understand it, the claim is that there are government agencies that still have files on Mayfield that contain information about the monitoring and searching of him. I'm not a standing expert, but I don't understand why that could be a continuing injury in fact: what is the "concrete" and "particularized" injury to Mayfield if somewhere there is a file that has information about him?


    Under Judge Aiken's approach, it would seem that everyone who was investigated in the past has ongoing injury in fact: Investigators keep files, and those files say what the investigators learned. Does the fact that somewhere some government computer has a record create an ongoing, concrete, and particularized injury in fact? I find this unlikely. (As an aside, I wonder how this applies to human memory. If an agent remembers what he saw inside Mayfield's house, does the presence of that memory, stored as a network of neurons in the "computer" of the agent's mind, create an ongoing injury in fact?)


    I think I understand his reasoning [first para]^^

    He talks about standing....for a facial challenge.
    In short that means the law as written is always wrong/unconstitutional.
    Because of this or that...an ongoing "harm"/"injury"

    Thats what I was getting at earlier with my point about someone with a
    challenge around homicide law. Assuming the guy was freed by dna info and compensated
    by some authority.
    Is the fault with the law or what happened?
    Last edited by jimzinsocal; 09-27-2007 at 03:31 PM.

  13. #13
    Joined
    Nov 2001
    Location
    Montana
    Posts
    7,743

    Re: Judge Rules 2 Patriot Act Provisions Unlawful

    If the files on Mayfield and the info therein originated from the faulty searches? Much different than the broad brush voluk tries to paint with.

    Further, he talks about the prudence of the govt. monitoring suspects when information comes to light. We're not talking monitoring here either, we're talking repeated sneak and peak searches of a US citizens papers and effects, without serving a warrant. The Fourth is pretty specifc on all that stuff, another reason I find his reasoning almost laughable.

    The only thing that isn't funny is that people think it's justified: Subvert the Fourth for our safety? The whole intent of the Fourth is to ensure safety against an overzeolous govt, which was exactly the case here. The law is flawed because of non-disclosure provisions.
    Tyan S5397 2x X5450 16GB - SuperMicro H8DCI 2x 275 8GB - Iwill DK8X 2x Opteron 250 2GB


    Take a Kid FISHING!

  14. #14
    Joined
    Aug 2001
    Posts
    74,682

    Re: Judge Rules 2 Patriot Act Provisions Unlawful

    But were the searches faulty? Recall a FISA Judge signed off on them and the threshold is different when its a terror connected investigation...we know that. And obviously I assume the searches were in good faith....and I havent read any description that suggests the searches were illegal.
    But I get and understand what you are getting at.
    Last edited by jimzinsocal; 09-27-2007 at 11:52 PM.

  15. #15
    Joined
    Nov 2001
    Location
    Montana
    Posts
    7,743

    Re: Judge Rules 2 Patriot Act Provisions Unlawful

    That's what the case is about, isn't it? Allowing a FISA judge to sign off on the Fourth basically disregards the Fourth. 'Terror' be damned, the Fourth does not say "except when the govt deems it necessary". Which is why the judge ruled as she did.

    Were the searches flawed? Irrelevant. I'm pretty sure they're challenging the basis for the sneak and peak searches, they're done with the searches themselves (other than having the govt destroy info it obtained from the searches).
    Tyan S5397 2x X5450 16GB - SuperMicro H8DCI 2x 275 8GB - Iwill DK8X 2x Opteron 250 2GB


    Take a Kid FISHING!

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •