

A federal district court judge struck down two key pillars of the Patriot Act Wednesday, ruling that using a secret spying court to wiretap and secretly search Americans' homes for criminal prosecutions violates the Constitution's protections against unreasonable searches and seizures.

Federal district court judge Ann Aiken struck down the government's ability to get orders from the secret spy court for anything other than acquiring foreign intelligence activities, saying that using that court and its lowered standards – instead of getting a traditional criminal wiretap order – violates the Fourth Amendment's ban on unreasonable searches and seizures. The ruling applies to Patriot Act changes to wiretapping laws and to so-called sneak-and-peak searches, where the government can search someone's home secretly and never have to disclose the search to the individual.

The ruling comes out of a lawsuit brought by Portland attorney Brandon Mayfield, who was arrested by the FBI shortly after train bombings in Madrid, Spain. The FBI publicly said Mayfield's prints matched the bomb, though Mayfield had no passport and the Spanish police told the FBI they did not believe the print was a match. The government approached the secret spying court, saying that Mayfield was an "agent of a foreign power" which allowed the government to get warrants to secretly search his home and office, as well as bug his house and eavesdrop on him, for use in a criminal court. Prior to the Patriot Act, searches authorized by the Foreign Intelligence Surveillance Act had to have a primary purpose of gathering foreign intelligence, rather than prosecuting a person.

Mayfield, a practicing Muslim who argues he was targeted by the FBI because of his religion, was later exonerated of all charges.

Mayfield and the government settled his lawsuit, with the exception of his challenge to the changes to the Patriot Act that allowed the government to use secret spying orders, rather than traditional wiretaps, for criminal cases.

Judge Aiken, a federal district court judge in Portland, Oregon, found that the Patriot Act handed too much power to the executive branch:

The practical result of this amendment, objected to by plaintiffs, is that in criminal investigations, the government can now avoid the Fourth Amendment's probable cause requirement when conducting surveillance or searches of a criminal suspect's home or office merely by asserting a desire to also gather foreign intelligence information... In place of the Fourth Amendment, the people are expected to defer to the Executive Branch and its representation that it will authorize such surveillance only when appropriate. The defendant 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.

If the decision holds, the government will also have to destroy the materials it seized from Mayfield's house. That evidence may include, according to the ruling "photocopies or photographs of documents from confidential client files in Mayfield's law office, summaries and excerpts from the computer hard drives from the Mayfield law office and plaintiffs' personal computers at home, analysis of plaintiffs' personal bank records and bank records from Mayfield's law office, analysis of client lists, websites visited, family financial activity, summaries of confidential conversations between husband and wife, parents and children, and other private activities of a family's life within their home."

The government will almost certainly appeal the decision (.pdf) to the 9th U.S. Circuit Appeals Court.

The case is Mayfield v. United States.

Photo: Bush signing the Patriot Act on October 26, 2001