Why have we not talked about this? I searched the blogs on my list of regular reads for “Brandon Mayfield” and found only one mention in the last seven months, in passing in Underdog. Do I need to broaden my blawgospherical horizons?
“This” is the opinion of the Honorable Ann Aiken of the United States District Court for the District of Oregon in Mayfield v. United States. In short, Judge Aiken denied summary judgment for the government and granted summary judgment for the plaintiffs, holding that sections 1804 and 1823 of Title 50 of the United States Code, “as amended by the Patriot Act, are unconstitutional because they violate the Fourth Amendment of the United States Constitution.”
One thing the government tried to do with “USA PATRIOT” Act (malevolent acronym! I’ll send a “Notice to Agents” coffee mug to the person who best describes the act with words whose initials form the acronym TREASON or TRAITOR or USA TRAITOR or such) was to expand its own power to search and wiretap U.S. citizens in criminal cases.
The Government has historically been bound by the Fourth Amendment when investigating crimes, but not when seeking “foreign intelligence information.” Before the TREASON (Trouncing Rights, Eviscerating and Spoiling Our Nation?) Act, the government could go to the FISC (Foreign Intelligence Surveillance Court) under the FISA (Foreign Intelligence Surveillance Act) and, on a showing that the target may be an agent of a foreign government (including a terrorist organization), that the place or facility to be searched is being used in furtherance of espionage or terrorist activities, and that the primary purpose of its surveillance was to obtain foreign intelligence information, get authorization for covert physical surveillance (sneak-and-peeks) and electronic surveillance. The government satisfies most of FISA’s requirements by certifying that the requirements are met; the “court” must defer to the government’s certification unless it is clearly erroneous.
The TRAITOR (Taking Rights Away In Time Of Risk?) Act broadened the government’s sneak-and-peek and secret wiretap authority by permitting such covert acts if a significant purpose of the surveillance and searches is the gathering of foreign intelligence. The FISC’s decision to allow secret searches and surveillance is non-reviewable; if the FISC declines permission, the government can appeal to the FISCR, which will listen to oral argument from the Government only and decide whether the FISC was not generous enough with access to our private lives. The Government has appealed to the FISCR once, in 2003, and the FISCR unsurprisingly upheld the new FISA requirements.
The government argues that the people should defer to the Executive Branch and allow it to conduct criminal (as opposed to foreign intelligence) surveillance without oversight, as long as it certifies that foreign intelligence is “a significant purpose” of the surveillance. At the same time, the government tells us that drugs fund terrorism. It’s easy to see how foreign intelligence could wind up being the “Interstate Commerce” of the 21st century: if we let the government ignore the Fourth Amendment anytime it claims a significant foreign intelligence purpose, it’s going to claim a significant foreign intelligence purpose in every case.
The foreign intelligence camel had its nose in the Fourth Amendment tent. Judge Aiken (with the guidance of lawyers Gerry Spence, Elden Rosenthal, and Michele Longo Eder) gave it a good whack. The government has appealed Judge Aiken’s decision; it remains to be seen whether the Ninth Circuit and the Supreme Court will back her up.