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2 Patriot Act Provisions Ruled Unlawful
2007-09-27 07:00:00
The Associated Press
By WILLIAM McCALL Associated Press Writer


PORTLAND, Ore. (AP) — Two provisions of the USA Patriot Act are unconstitutional because they allow secret wiretapping and searches without a showing of probable cause, a federal judge ruled Wednesday.

U.S. District Judge Ann Aiken ruled that the Foreign Intelligence Surveillance Act, as amended by the Patriot Act, "now permits the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment."

Portland attorney Brandon Mayfield sought the ruling in a lawsuit against the federal government after he was mistakenly linked by the FBI to the Madrid train bombings that killed 191 people in 2004.

The federal government apologized and settled part of the lawsuit for $2 million after admitting a fingerprint was misread. But as part of the settlement, Mayfield retained the right to challenge parts of the Patriot Act, which greatly expanded the authority of law enforcers to investigate suspected acts of terrorism.

Mayfield claimed that secret searches of his house and office under the Foreign Intelligence Surveillance Act violated the Fourth Amendment's guarantee against unreasonable search and seizure. Aiken agreed with Mayfield, repeatedly criticizing the government.

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

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."

Elden Rosenthal, an attorney for Mayfield, issued a statement on his behalf praising the judge, saying she "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, and he declined to comment further.

The ruling probably won't have any immediate affect on enforcement under the Patriot Act, according to legal experts who predicted the government would quickly appeal.

"But it's an important first step," said Jameel Jaffer, director of the American Civil Liberties Union's national security project.

Jaffer noted that the Patriot Act carries dozens of provisions and that several have been challenged — but that this is one of the first major rulings on Fourth Amendment rights.

"This is as clear a violation of the Fourth Amendment as you'll ever find," Jaffer said.

Garrett Epps, a constitutional law expert at the University of Oregon, said the ruling adds to the poor record that the Bush administration has piled up in defending the Patriot Act.

"It's embarrassing," Epps said. "It represents another judicial repudiation of this administration's terrorist surveillance policies."

A federal judge in New York this month handed the ACLU a victory in a challenge to the Patriot Act on behalf of an Internet service provider that was issued a "national security letter" demanding customer phone and computer records. The 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.

Mayfield, a Muslim convert, was taken into custody on May 6, 2004, because of a fingerprint found on a detonator at the scene of the Madrid bombing. The FBI said the print matched Mayfield's. He was released about two weeks later, and the FBI admitted it had erred in saying the fingerprints were his and later apologized to him.

Before his arrest, the FBI put Mayfield under 24-hour surveillance, listened to his phone calls and surreptitiously searched his home and law office.

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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Diamond with Oak Clusters Bullet Member
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We either have a 4th amendment or we do not have one.
 

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Ding!

We either have a 4th amendment or we do not have one.
Well said, Sir -- Hear Here...

As much as it pains me to agree with the ACLU about anything, they were on the right side here. Even a broken clock is right twice per day... ;)

I don't fear the terrorists nearly as much as I fear the creeping fascism being perpetrated in the name of "protecting" me from it.

As many claim Franklin said: "Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety."

I'll take my chances with the terrorists...

DD
 

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So they didn't lie about the fingerprint in order to arrest this guy - they misread it, right? Sounds to my like they had proboble cause - or thought they did.
A legal system which allows the feds to search my home without my knowledge and arrest me if they have serious suspicions that I might be involved in terrorism - but also requires them to pay me 2 million dollars if the search and my arrest can be shown to be the result of sloppy work - doesn't scare me. I've been detained by police before because I resembled a wanted criminal - it happens; that's the price you pay for a safe society. Now if the feds were trying people in court based on evidence found to be illegally obained, that would be another matter.
 

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Diamond with Oak Clusters Bullet Member
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They say they mis-read the print. Do you expect them to admit that they intentionally gigged the guy ??
 

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I doubt they would knowingly go after somebody unless they at least mistakenly thought they had enough evidence for a conviction. It isn't like they have limitless time and resources and can just start detaining people on a whim.

It is far more plausible that they made a mistake rather than to believe they just went out and arrested some guy with brown skin and "rolled the dice" hoping that something solid would come up after they had him in custody.
 

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Diamond with Oak Clusters Bullet Member
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that's the price you pay for a safe society.
Lets see, first you need to turn in your guns so society can be safe.

Then a chip needes to be inserted in your body so you can be tracked. After all you admit that the police have shown an interest in you in the past so society needs to be safe.

Also your bank accounts have to be monitored since you might use the money for something that is not safe. Perhaps this can be accomplished by requiring dual signatures on any bank transactions.

You will also need an identity card that you have to carry with you at all times, to be produced upon request.

Then a GPS device has to be inserted in your car so society will know where you are at all times. This is a backup to the chip/gps device previously mentioned, so as to protect society.

You have to be home by 6 PM every night, otherwise society cannnot be safe since you have been presiously investigated by the police.

Just a few things to protect people and make them feel safe.

Since you want people to be safe, I know you will not mind. Its just the price you pay for a safe society.

By the way, I forgot to mention the cameras that will be installed in your house so as to protect society.
 

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I doubt they would knowingly go after somebody unless they at least mistakenly thought they had enough evidence for a conviction. It isn't like they have limitless time and resources and can just start detaining people on a whim.

It is far more plausible that they made a mistake rather than to believe they just went out and arrested some guy with brown skin and "rolled the dice" hoping that something solid would come up after they had him in custody.

Hell, CC, Occam's Razor is far less glamorous than a conspiracy theory; I'm no fan of creeping totalitarianism but this ain't it.
 

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We either have a 4th amendment or we do not have one.
CPW has it right. You can't "fudge" the bill of rights.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
 

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Our society as a whole could do with a lot more application of Occam's Razor.

It would put a whole lot of people on the extremities of left and right out of a time-consuming hobby.

When you don't have access to all the facts, assume that the simplest explanation is the best.
 

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Silver Bullet member
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They had a search warrant from a judge. When the information used to get that warrant proved incorrect the government paid, big. So what're you bitchin' about?


As for the judge, a Clinton appointee and former Dem. fundraiser:

Appointed Forever, Bar & Grill Singers (12 lawyers from Austin, TX)
To the tune of "Happy Together"

Imagine me as God. I do.
I think about it day and night.
It feels so right
To be a federal district judge and know that I’m
Appointed forever.
...

[CHORUS]

I’m a federal judge
And I’m smarter than you
For all my life.
I can do whatever I want to do
For all my life.


Judge William G. Young, chief judge for the U.S. District Court for the District of Massachusetts, actually put this song in his opinion in Suboh v. Borgioli, Case No. 00-10396-WGY (D. Mass. Jan. 4, 2004).
 

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...I'm no fan of creeping totalitarianism but this ain't it.
Our Govt. is claiming -- outright -- that getting warrants as required by the 4th amendment is too much trouble.

The claim is tolerable, sorta.

The problem is that they've also stated -- outright -- they're not going to bother.

Don't even get me started on the holding of American citizens indefinitely without trial or access to counsel.

I could go on (and on) but these should be enough to make the point.

Respectfully -- if this "ain't it", what is?

DD
 

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Diamond Bullet Member/Moderator
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Lets see, first you need to turn in your guns so society can be safe.

Then a chip needes to be inserted in your body so you can be tracked. After all you admit that the police have shown an interest in you in the past so society needs to be safe.

Also your bank accounts have to be monitored since you might use the money for something that is not safe. Perhaps this can be accomplished by requiring dual signatures on any bank transactions.

You will also need an identity card that you have to carry with you at all times, to be produced upon request.

Then a GPS device has to be inserted in your car so society will know where you are at all times. This is a backup to the chip/gps device previously mentioned, so as to protect society.

You have to be home by 6 PM every night, otherwise society cannnot be safe since you have been presiously investigated by the police.

Just a few things to protect people and make them feel safe.

Since you want people to be safe, I know you will not mind. Its just the price you pay for a safe society.

By the way, I forgot to mention the cameras that will be installed in your house so as to protect society.
All of your examples can either be shown to NOT make society any safer (turning in guns) or don't relate to having proboble cause . Not what I was suggesting.
 

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Our Govt. is claiming -- outright -- that getting warrants as required by the 4th amendment is too much trouble.

The claim is tolerable, sorta.

The problem is that they've also stated -- outright -- they're not going to bother.

Don't even get me started on the holding of American citizens indefinitely without trial or access to counsel.

I could go on (and on) but these should be enough to make the point.

Respectfully -- if this "ain't it", what is?

DD

The Lautenberg Travesty is an excellent example; ex-post facto application of a law depriving citizens of an enumerated Constitutional Right for a misdemeanor, f'cripes sake. This doesn't rise to that level, like jjk308 said:

"They had a search warrant from a judge. When the information used to get that warrant proved incorrect the government paid, big. So what're you bitchin' about?"

Citizens held without trial--did I say anything about that; was this court decision about that? Whole different subject and you don't know a thing about my opinion of that because I've never stated it in this Forum.

Please provide a citation for your claim "they're not going to bother." I must have missed that one; it's certainly not in the quoted news article at the start of this topic.
 

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Our Govt. is claiming -- outright -- that getting warrants as required by the 4th amendment is too much trouble.
DD
Warrantless searches have always been legal under a wide range of circumstances, and have nothing to do with all the fears of gun confiscation, electronic tracking and brain control by the Illuminati or the aliens from Beta Reticuli.

Prior to the Post Vietnam era warrants were rarely used in national security cases except in cases where a criminal conviction was desired. Warrantless information gathering of all sorts; , telecommunications intercepts, interception and tracking of mail, eavesdropping, even break-ins were all used in the 20th century in both World Wars and the Cold War.

A lot of the current controversy is due to the administration's attempt to be too finicky on legal matters. Too many @#$% lawyers treat intelligence as if it was evidence gathering for a criminal case, there are too many lawyers in high positions in government, and the Bush administration was too chicken to just go ahead and do it instead of asking permission from Congress.

Legal Warrantless Searches (Pre Patriot Act) - Civics Library of the Missouri Bar

· Searches after an arrest
· Consent searches
· Plain view
· Stop and frisk
· Hot pursuit
· Automobile
· Inventory
· Border and airport searches
· Exigent circumstances


As for wartime and warrantless searches: From Wikipedia - Warrantless searches in the United States

Attorney General Alberto Gonzales briefed Congress on February 6, 2006 on the history of warrantless foreign intelligence searches:

"This fact is amply borne out by history. This Nation has a long tradition of wartime enemy surveillance—a tradition that can be traced to George Washington, who made frequent and effective use of secret intelligence. One source of Washington’s intelligence was intercepted British mail. See Central Intelligence Agency, Intelligence in the War of Independence 31, 32 (1997). In fact, Washington himself proposed that one of his Generals “contrive a means of opening [British letters] without breaking the seals, take copies of the contents, and then let them go on.” Id. at 32 (“From that point on, Washington was privy to British intelligence pouches between New York and Canada.”). And for as long as electronic communications have existed, the United States has intercepted those communications during wartime, and done so, not surprisingly, without judicial warrants. In the Civil War, for example, telegraph wiretapping was common and provided important intelligence for both sides. In World War I, President Wilson authorized the military to intercept all telegraph, telephone, and cable communications into and out of the United States; he inferred the authority to do so from the Constitution and from a general congressional authorization to use military force that did not mention anything about such surveillance. See Exec. Order No. 2604 (Apr. 28, 1917). So too in World War II; the day after the attack on Pearl Harbor, President Roosevelt authorized the interception of all communications traffic into and out of the United States. The terrorist surveillance program, of course, is far more focused, since it involves the interception only of international communications that are linked to al Qaeda." [1]

Other historical precedents cited by Attorney General Gonzales were Cold War era black ops and warrantless wiretaps. Abuses of power by the federal government led to reform legislation in the 1970s.[2] Advancing technology began to present questions not directly addressed by the legislation as early as 1985.[3]
 

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Diamond with Oak Clusters Bullet Member
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All of your examples can either be shown to NOT make society any safer (turning in guns) or don't relate to having proboble cause . Not what I was suggesting.
Your approach does not make society any safer either.
 

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Diamond with Oak Clusters Bullet Member
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Legal Warrantless Searches (Pre Patriot Act) - Civics Library of the Missouri Bar

· Searches after an arrest
· Consent searches
· Plain view
· Stop and frisk
· Hot pursuit
· Automobile
· Inventory
· Border and airport searches
· Exigent circumstances

QUOTE]


In Petrov's example, which of the above reasons supported the warrant ???
 

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And I'll betcha the military/gubmint has done lots of other sneaky things sotto voce for a long time. The mistake that has been made by this administration has been coming out and saying, "hey, we want legislation to allow us to (insert sneaky act here)".

Instead of just doing it like always, W waved a big ole flag that the public couldn't miss. That brought down the wrath of civil libertarians from all over.
 

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"not going to bother" == the whole "FISA rules are too cumbersome" conundrum, etc.

I guess "it" depends on your definition of the word "this"... ;)

I was speaking not specifically of this (oops) case -- but using "this" in the larger context of life and particularly of Executive action in this country since 9/11.

I (mis)read your "this ain't it" statement in the same context.

In that context, I think it would be hard to argue that "this" isn't creeping fascism, and harder to argue that our founding fathers are spinning in their graves...

Peace, Bro. I had no intention to offend and am genuinely sorry if you read it that way...

DD
 

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Legal Warrantless Searches (Pre Patriot Act) - Civics Library of the Missouri Bar

· Searches after an arrest
· Consent searches
· Plain view
· Stop and frisk
· Hot pursuit
· Automobile
· Inventory
· Border and airport searches
· Exigent circumstances

QUOTE]


In Petrov's example, which of the above reasons supported the warrant ???
ex·i·gent
[/URL] /ˈɛk
dʒənt/ Pronunciation Key - Show Spelled Pronunciation[ek-si-juh
nt] Pronunciation Key - Show IPA Pronunciation –adjective 1.requiring immediate action or aid; urgent; pressing. 2.requiring a great deal, or more than is reasonable.
Also, exigeant.

[Origin: 1400–50; late ME < L exigent- (s. of exigéns) (prp. of exigere to drive out, demand), equiv. to ex- ex-1 + -ig- (comb. form of agere to drive) + -ent- -ent
]

—Related forms ex·i·gent·ly, adverb


Dictionary.com Unabridged (v 1.1)
Based on the Random House Unabridged Dictionary, © Random House, Inc. 2006.


It would seem to me that tracking down and catching mass-murdering bombers (the root cause for this ACLU case in the first place) would be "exigent circumstances"--?:rolleyes:
 
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