The Brian Mayfield case referred to in the post of September 27th holding parts of the USA PATRIOT Act unconstitutional is now available on Lexis. Mayfield v. United States, 504 F. Supp. 2d 1023 (D. Ore. 2007):
Prior to the Patriot Act, the government was required to certify that the primary purpose of its surveillance was to obtain foreign intelligence information. The Patriot Act now authorizes FISA surveillance and searches as long as a significant purpose of the surveillance and searches is the gathering of foreign intelligence. 50 U.S.C. §§ 1804(a)(7)(B) and 1823(a)(7)(B). This amendment allows the government to obtain surveillance orders under FISA even if the government’s primary purpose is to gather evidence of domestic criminal activity. See In re All Matters Submitted To The Foreign Intelligence Surveillance Court (“In re FISC“), 218 F. Supp. 2d 611, 615 n.2 (FISC 2002). 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 from the person whom the government intends to criminally prosecute. The government is now authorized to conduct physical searches and electronic surveillance upon criminal suspects without first proving to an objective and neutral magistrate that probable cause exists to believe that a crime has been committed. The government need only represent that the targeted individual was an agent of a foreign power (a representation that must be accepted unless “clearly erroneous”) and that “a significant purpose” of the surveillance and search is to collect foreign intelligence.
Here, the government chose to go to the FISC, despite the following evidence: Mayfield did not have a current passport; he had not been out of the country since completing his military duty as a U.S. Army lieutenant in Germany during the early 1990s; the fingerprint identification had been determined to be “negative” by the SNP; the SNP believed the bombings were conducted by persons from northern Africa; and there was no evidence linking Mayfield with Spain or North Africa. The government nevertheless made the requisite showing to the FISC that Mayfield was an “agent of a foreign power.” That representation, which by law the FISC could not ignore unless clearly erroneous, provided the government with sufficient justification to compel the FISC to authorize covert searches and electronic surveillance in support of a criminal investigation.
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At issue here are two fundamental concerns: the safety of our nation and the constitutional rights of citizens. With the passage of the Patriot Act, these concerns are now placed in conflict. The court recognizes that a difficult balance must be struck in a manner that preserves the peace and security of our nation while at the same time preserving the constitutional rights and civil liberties of all Americans.FN7
7. See Doe v. Gonzalez et al., CV 04-2614 (S.D. N.Y. Sept. 6, 2007) (sections of the Patriot Act, as amended, authorizing the issuance of “national security letters” held unconstitutional).
Prior to passage of the Patriot Act, the government would have been required to follow the traditional process and demonstrate probable cause to a “detached and neutral magistrate” that Mayfield had committed a crime. Therefore, prior to issuing a search warrant, the Fourth Amendment required that law enforcement have reasonable grounds to believe that the law was being violated. FISA does not contain this criminal standard of probable cause. Instead, FISA contains a “foreign intelligence standard” of probable cause which requires a showing that the target may be an agent of a foreign government and the place or facility to be searched is being used in furtherance of espionage or terrorist activities.
Significantly, a seemingly minor change in wording has a dramatic and significant impact on the application of FISA. A warrant under FISA now issues if “a significant purpose” of the surveillance is foreign intelligence. Now, for the first time in our Nation’s history, the government can conduct surveillance to gather evidence for use in a criminal case without a traditional warrant, as long as it presents a non-reviewable assertion that it also has a significant interest in the targeted person for foreign intelligence purposes.
Since the adoption of the Bill of Rights in 1791, the government has been prohibited from gathering evidence for use in a prosecution against an American citizen in a courtroom unless the government could prove the existence of probable cause that a crime has been committed. The hard won legislative compromise previously embodied in FISA reduced the probable cause requirement only for national security intelligence gathering. The Patriot Act effectively eliminates that compromise by allowing the Executive Branch to bypass the Fourth Amendment in gathering evidence for a criminal prosecution.
In 1967, the Supreme Court held that a New York statute authorizing electronic surveillance violated the Fourth Amendment because: (1) “it did not requir[e] the belief that any particular offense has been or is being committed; nor that the ‘property’ sought, the conversations, be particularly described;” (2) it failed to limit the duration of the surveillance to impose sufficiently stringent requirements on renewals of the authorization; and (3) the statute “has no requirement for notice as do conventional warrants, nor does it overcome this defect by requiring some showing of special facts.” Berger v. New York, 388 U.S. 41, 58-60 (1967).
The Court specifically rejected the state’s argument that Fourth Amendment requirements should be relaxed because the surveillance statute was essential in its fight against organized crime. The Court held:
[W]e cannot forgive the requirements of the Fourth Amendment in the name of law enforcement. This is no formality that we require today but a fundamental rule that has long been recognized as basic to the privacy of every home in America. While the requirements of the Fourth Amendment are not inflexible, or obtusely unyielding to the legitimate needs of law enforcement, it is not asking too much that officers be required to comply with the basic command of the Fourth Amendment before the innermost secrets of one’s home or office are invaded. Few threats to liberty exist which are greater than that posed by the use of eavesdropping devices.
Id. at 62-63 (internal quotation and citation omitted).
Subsequently, the Supreme Court in Katz v. United States, 389 U.S. 347 (1967), held that the Fourth Amendment’s probable cause and warrant requirements apply to electronic surveillance. In a footnote, however, the majority opinion expressly deferred deciding whether the Fourth Amendment requires prior judicial authorization of surveillance in cases involving national security. Id. at 358 n.23. Four years later, the Supreme Court revisited the issue in United States v. United States District Court, 407 U.S. 297 (1972) (Keith). That case arose from the prosecution of three citizens who were allegedly conspiring to bomb a CIA office in Ann Arbor, Michigan. Id. at 299. While the Supreme Court recognized both the Executive Branch’s interest in protecting national security and the value of electronic surveillance in detecting security threats, the Court nonetheless noted:
There is understandably, a deep-seated uneasiness and apprehension that this [surveillance] capability will be used to intrude upon cherished privacy of law-abiding citizens. We look to the Bill of Rights to safeguard this privacy. Though physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed, its broader spirit now shields private speech from unreasonable surveillance.
Id. at 312-13(footnote omitted).
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The decisions in Katz and Keith drew a line between surveillance conducted by law enforcement officials to investigate crime–which requires a traditional warrant based on probable cause–and surveillance conducted by intelligence officials to obtain foreign intelligence information. Notably, the primary purpose of the electronic surveillance and physical searching of Mayfield’s home was to gather evidence to prosecute him for crimes. Mayfield was ultimately arrested to compel his testimony before a Grand Jury investigating his alleged involvement in the crimes of bombing places of public use, providing national support to terrorists and conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign county. In Re: Federal Grand Jury 03-01 Matter of Material Witness, No. 04-MC-9071 (D. Or. 2004). The government stipulated that it did not demonstrate to the FISC that its primary purpose in wiretapping, electronically eavesdropping, or physically searching Mayfield’s home or law office was to gather foreign intelligence. “In the FISA applications, the government did not seek to establish, and under the terms of FISA was not required to establish, all of the requirements set forth in 18 U.S.C. § 2510 et seq. and Rule 41, Fed. R. Crim. P.” Recitation of Stipulated Facts (“Stip.”), P a. Thus, FISA now permits the Executive Branch to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment. As plaintiffs allege, when proceeding pursuant to FISA, “there is no [need for] showing or finding that a crime has been or is being committed, as in the case of a search or seizure for law enforcement purposes.” Plaintiffs’ Memo in Support of Summary Judgment, p. 26. “Additionally, and with respect to the nexus to criminality required by the definitions of an ‘agent of a foreign power,’ the government need not show probable cause as to each and every element of the crime involved or about to be involved.” Id. When the FISC reviews a FISA search application, the government satisfies most FISA requirements simply by certifying that the requirements are met. 50 U.S.C. § 1804(a)(7). The statute directs that the FISC is not to scrutinize such statements, but is to defer to the government’s certification unless it is “clearly erroneous.” Id. at § 1805(a)(5); § 1824(a).
This procedure allows the government to avoid traditional Fourth Amendment judicial oversight used to obtain a surveillance order. The government must provide the court with “a full and complete statement of the facts and circumstances relied upon by the applicant to justify his belief that an order should be issued.” 18 U.S.C. § 2518(1)(b). The court may “require the applicant to furnish additional testimony or documentary evidence in support of the application.” Id. at § 2518(2). Finally, as to most substantive requirements, the court must find probable cause to believe they are satisfied. Id. at § 2518(3).
The FISA also allows the government to retain information collected, and use the collected information in criminal prosecutions without providing any meaningful opportunity for the target of the surveillance to challenge its legality. Nor does FISA require notice. The Fourth Amendment ordinarily requires that the subject of a search be notified that the search has occurred. Although in some circumstances the government is permitted to delay the provision of notice, the Supreme Court has never upheld a statute that, like FISA, authorizes the government to search a person’s home or intercept his communications without ever informing the person that his or her privacy has been violated. Except for the investigations that result in criminal prosecutions, FISA targets never learn that their homes or offices have been searched or that their communications have been intercepted. Therefore, most FISA targets have no way of challenging the legality of the surveillance or obtaining any remedy for violations of their constitutional rights.
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In this case, the court declines to adopt the analysis and conclusion reached by the FISCR in In re Sealed Case. Notably, the FISCR’s two fundamental premises underlying its ruling are contradictory. FISCR determined both that FISA never contained a purpose requirement, and that in altering the purpose requirement, Congress did not undermine the validity of searches conducted pursuant to FISA. Regarding FISCR’s second premise, FISCR found that the primary purpose test “generates dangerous confusion and creates perverse organizational incentives arising from the purported need to distinguish between intelligence gathering and criminal investigation.” Id. at 743. However, a provision of the Patriot Act, unchallenged by plaintiffs here, eliminates the DOJ “wall” and with it the “dangerous confusion” and “perverse organizational incentives” referred to and relied on by the FISCR. Moreover, to the extent the “primary purpose” test imposes any restraint on the sharing of FISA surveillance with criminal investigators, investigators are, of course, free to seek orders authorizing surveillance under Title III, and traditional search warrants that satisfy Fourth Amendment requirements. Finally, Title III includes predicate offenses for which surveillance is justified for virtually all terrorism and espionage-related offenses. 18 U.S.C. § 2516(1). As such, Title III provides a satisfactory alternative when criminal investigators cannot have access to FISA surveillance.
The FISCR also attempts, without merit, to distinguish the Supreme Court’s “special needs” cases. In re Sealed Case, 310 F.3d at 745-46 n. 33. “Special needs” cases are those where the Supreme Court has found it appropriate to carve out an exception to the Fourth Amendment’s requirement of probable cause based upon an individualized suspicion of wrongdoing. In these cases, the Court found that special needs, beyond the normal need of law enforcement, might justify an otherwise unconstitutional search. Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 619 (1989). Prior to the Patriot Act, FISA may have had as its “general programmatic purpose … to protect the nation against terrorism and espionage threats directed by foreign powers.” In re Sealed Case, 310 F.3d at 46. After the Patriot Act, however, FISA surveillance, including the surveillance at bar, may have as its “programmatic purpose” the generation of evidence for law enforcement purposes–which is forbidden without criminal probable cause and a warrant.
Finally and perhaps most significantly, In re Sealed Case ignores congressional concern with the appropriate balance between intelligence gathering and criminal law enforcement. It is notable that our Founding Fathers anticipated this very conflict as evidenced by the discussion in the Federalist Papers. Their concern regarding unrestrained government resulted in the separation of powers, checks and balances, and ultimately, the Bill of Rights. Where these important objectives merge, it is critical that we, as a democratic Nation, pay close attention to traditional Fourth Amendment principles. The Fourth Amendment has served this Nation well for 220 years, through many other perils. Title III, like the Supreme Court’s pronouncements in Katz and Berger, recognizes that wiretaps are searches requiring fidelity to the Fourth Amendment.
Moreover, the constitutionally required interplay between Executive action, Judicial decision, and Congressional enactment, has been eliminated by the FISA amendments. Prior to the amendments, the three branches of government operated with thoughtful and deliberate checks and balances–a principle upon which our Nation was founded. These constitutional checks and balances effectively curtail overzealous executive, legislative, or judicial activity regardless of the catalyst for overzealousness. The Constitution contains bedrock principles that the framers believed essential. Those principles should not be easily altered by the expediencies of the moment.
Despite this, the FISCR holds that the Constitution need not control the conduct of criminal surveillance in the United States. 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.
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. In this regard, the Supreme Court has cautioned:
The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.Keith, 407 U.S. at 314.
Therefore, I conclude that 50 U.S.C. §§ 1804 and 1823, as amended by the Patriot Act, are unconstitutional because they violate the Fourth Amendment of the United States Constitution. Plaintiffs’ Amended Complaint for declaratory relief is granted.
See the article on Vengeance is Brandon Mayfield’s by my friend Garrett Epps on salon.com.
