Yesterday, Oregon U.S. District Judge Ann Aiken ruled two Patriot Act revisions of FISA unconstitutional. WaPo story here. Judge Aiken’s order and opinion here. This post is (hopefully) the first of three about the decision.

The case involves Oregon family law practicioner Brandon Mayfield, who was erroneously accused of involvement in the Madrid Train bombings of 2004. The FBI “matched” fingerprints found on a bag of detonating devices in Spain to Mayfield’s. Despite subsequent communication from Spanish authorities that Spain’s law enforcement officials suspected certain Morrocan nationals as the culprits, and despite Mayfield’s uninterupted presence within the United States for the previous ten years, the FBI sought and received from the FISA court warrants to secretly search Mayfield’s home and office (”sneak-and-peek”), and to listen-in on conversations both in Mayfield’s home and office. FBI surveillance further included watching the Mayfield family as they traveled to and from their place of worship, to and from the Mayfield children’s school, and to and from family activities.

By the way, Mayfield and his family are practicing Muslims. From the opinion (pps 9-11):

Plaintiff’s allege that DOJ and FBI employees “concocted false and misleading affidavits” in order to justify even more intrusive searches and ultimately to justify Mayfield’s arrest as a “material witness.” [...] Although the affidavits stated that “preliminary findings” of the SNP [Spanish National Police] “were not consistent” with the FBI fingerprint analysis, no mention was made of Spain’s [...] report to the FBI that stated the SNP did not agree with the FBI’s fingerprint match …

The affidavit included “speculative and prejudicial narratives” focusing on Mayfield’s religion and association with co-practicioners. Plaintiffs cite as an example, [FBI agent] Werders’s inclusion in his affidavit the fact that Mayfield attended a mosque and advertised his legal services in “Jerusalem Enterprises,” or what are known as the “Muslim Yellow Pages,” as evidence connecting Mayfield to the bombings as a material witness. Plaintiffs respond that the “Muslim Yellow Pages” also includes advertising by major companies such as Avis, Best Western, and United Airlines.

[...]

Based on these affidavits, broad search warrants were sought and issued. Mayfield’s family home and law office were searched. Computer and paper files from his home, including his children’s homework, were seized. Mayfield was ultimately arrested and initially held in the lockdown unit[.] His family was not told where he was being held. He and his family were told, however, that he was being held as a primary suspect on offenses punishable by death, and that the FBI made a 100% match of his fingerprint with the Madrid train bombing fingerprint.

The ease with which the FBI could obtain FISA warrants were due to two provisions inserted into FISA by the Patriot Act. First, where previously wiretapping and “sneak and peek” warrants required a “primary purpose” of obtaining foreign intelligence information, the Patriot Act revisions to FISA lowered the bar to a “significant purpose.” Second, where the target of the surveillance is a U.S. citizen, the FISC judge “must also find that the Executive Branch’s certification that a significant purpose of the search or surveillance is to obtain foreign intelligence information is not ‘clearly erroneous.’” Intstead of the “probable cause” standard of a crime committed or in commision, the government’s burden is dramatically lightened to simply “not clearly erroneous.”

Judge Aiken notes in the opinion (p. 19) that “the practical result of this amendment [...] 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[.]“

As easy as the press of a button.