Provisions of the Patriot Act were held unconstitutional by the U.S. District Court for the District of Oregon. Here’s my summary of the case (all other claims regarding the plaintiff’s detention were settled to):
Findings of Fact:
Fingerprints taken in connection from the 2004 Madrid bombings were sent to the U.S., who compared them against their existing FBI database. No match was found. Higher resolution pictures of the fingerprints were then sent. A new search was conducted and turned up 20 potential matches to one of the fingerprints. A score was assigned based on how closely it matched the original.
Brandon Mayfield’s print was ranked fourth closest out of the 20. The court describes Mayfield as follows:
Mayfield is an American citizen born in Oregon and reared in Kansas. He lives with his wife and three children in Aloha, Oregon, a suburb of Portland. Mayfield is 38 years old, a former Army officer with an honorable discharge, and a practicing Oregon lawyer. Prior to his arrest, he had not traveled outside the United States since 1994, and he had never been arrested for a crime. Plaintiffs allege that FBI examiners were aware of Mayfield’s Muslim faith and that this knowledge influenced their examination of Mayfield’s fingerprints.
Knowing of Mayfield’s religion, an agent declared his fingerprint a match to the Madrid fingerprint. This agent then gave the fingerprint to a retired FBI officer who confirmed his finding. This retired officer however, was reprimanded 3 times for erroneous identifications, and may also have known of Mayfield’s faith. A third senior officer agreed with the agent and the retired FBI officer that the fingerprint was a match.
Then the surveillance began:
On March 21, 2004, FBI surveillance agents began to watch Mayfield and to
follow Mayfield and members of his family when they traveled to and from the
Bilal Mosque, the family’s place of worship; to and from Mayfield’s law office, his place of employment; to and from the children’s school; and to and from family activities.
The plaintiffs alleged that the FBI sought a FISA court order and performed “sneak and peek” searches at Mayfield’s home and tapped phones.
On April 2, the U.S. sent Mayfield’s prints to Spain. Spain concluded Mayfield’s prints did not match. The FBI sent agents to try to convince the Spaniards of Mayfield’s guilt, but they insisted that they saw no connection.
The FBI was pleased, so they came back to the states and sought a court order for further searches, affirming to the court that their three officers found a “100% match” (while not mentioning Spain’s disagreement). In addition, the FBI included the fact that Mayfield attended mosques and was listed in the “Muslim Yellow Pages.” An expert was appointed, who was selected by Mayfield, and concluded that there was a match. The following occurred:
Mayfield’s family home and law office were searched. Computer and paper files from his family home, including his children’s homework, were seized. Mayfield was ultimately arrested and initially held in the lock down unit at the Multnomah County Detention Center. His family was not told where he was being held.
Mayfield’s was released from prison after on May 19, 2004, Spain informed that they had identified the print as belonging to an Algerian.
The Court’s Discussion of Law:
The court stated how the government represented to the FISA court that Mayfield was “an agent of a foreign power” despite no evidence that Mayfield left the United States (he didn’t even have a passport) and that Spain had come to a different conclusion. The court explained that under the lax FISA standards, the government could get away with this.
In other words, the government avoided a traditional 4th Amendment warrant, went to the FISA court and despite significant evidence to the contrary, was allowed to receive a FISA order.
The court discussed how the lower FISA standards run counter to the Bill of Rights. They go through major 4th Amendment cases, and illustrate that there was no probable cause that a crime had been or was being committed, and that the government specifically used a FISA law which allowed Mayfield to be subjected to searches even though there was less than a probable cause standard: “When the FISC reviews a FISA search application, the government satisfies most FISA requirements simply by certifying that the requirements are met.” In other words, by the virtue of the government declaring Mayfield or any U.S. citizen an agent of a foreign power” the FISA court can only overrule this decision if it is clearly erroneous–that is, that ALL of the evidence shows that the person ABSOLUTELY is not an agent of a foreign power.
A FISA appeal (In re Sealed Case) in 2002 upheld these procedures, but as the District Court pointed out, oral arguments were only heard by the government’s side and even then the court stated that it wasn’t clear whether the new FISA law was “consistent with the Fourth Amendment.”
The court rejected therefore rejected the conclusion in In re Sealed Case and held the FISA amendments unconstitutional.
Where we go from here
How likely is it that this decision will stand? The case looks headed to the Ninth Circuit Court of Appeals (which cover Most of the West Coast). It is a fairly “liberal” court and from cases cited by the opinion, it seems likely it will, in fact, uphold the decision. The case would then proceed to the Supreme Court, where it could end up in Justice Kennedy’s lap.
Some of the government’s arguments will be:
–The courts have recognized a need for a different standard with respect to foreign intelligence activities, and have suggested Congress resolve these issues, which it has with the Patriot Act.
–The FISA amendments were agreed upon by the Congress, so that the President’s powers are at a maximum (for more on this concept, google Justice Jackson’s concurrence in the Steel Seizure case).
–More specifically, Mayfield’s fingerprint evidence was agreed upon by four experts, so there was some basis for the U.S. government to believe he was involved.
–The settlement took care of damages to him, so the system essentially worked, and the law which has been agreed to by both political branches in this “dangerous time” need not be changed.
–They’ll probably throw in that the Court was making a decision best left to the political branches, as national security issues merit the most flexibility.
–They will also heavily rely again on the In re Sealed Case decision, which the Supremes could point to as adequate rationale, if they so choose.
–Finally, for good measure, they’ll argue that this was a rare case of mistaken identity.
My thoughts on the decision:
I agree one hundred percent with the court’s holding. Judicial opinions try to stick to the most concrete concepts of law, so a lot of the facts of this case are forgotten by the time you finish reaching the decision. But if you look back at the findings of fact, you see a truly horrible picture here.
Mayfield’s fingerprints were picked out from 20 people. One of the reasons why he was picked was because he was Muslim. Others who confirmed his fingerprint as a match also allegedly knew of his religion. When Spain turned the FBI and its accusations of Mayfield way, they became seemingly incensed, and stepped up the pressure on this innocent American citizen. A veteran. A lawyer. A family man. They left out important contradictory facts to get more court orders so they could conduct more searches and `nail’ him. They tapped his phones, broke into his home and followed his family around to mosques. Then they imprisoned him and didn’t tell his family members where he was located.
What more can you say? This is our taxpayer money at work on the War on Terror. Or as I like to call it, the War on Civil Liberties.
You can read the opinion here: http://www.ord.uscourts.gov/rulings/04-cv-1427Opinion.pdf
***Crossposted at Worldwide Sawdust
