The Glorious Fourth Amendment

A federal judge has ruled that parts of the USA PATRIOT Act are unconstitutional.

In a case brought by a Portland man who was wrongly detained as a terrorism suspect in 2004, U.S. District Judge Ann Aiken ruled that the Patriot Act violates the Constitution because it "permits the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment."

"For over 200 years, this Nation has adhered to the rule of law -- with unparalleled success," Aiken wrote in a strongly worded 44-page opinion. "A shift to a Nation based on extra-constitutional authority is prohibited, as well as ill-advised."

The ruling in Oregon follows a separate finding on Sept. 6 by a federal judge in New York, who struck down provisions allowing the FBI to obtain e-mail and telephone data from private companies without a court-issued warrant. The decision also comes amid renewed congressional debate over the government's broad powers to conduct searches and surveillance in counterterrorism cases. Justice Department spokesman Brian Roehrkasse said last night that the administration "will consider all our options" in responding to yesterday's ruling.

I'm curious as to what the Justice Department thinks those "options" might be. I'm not a lawyer, but I have read the Constitution and I'm pretty sure I'd remember if there was a part that said the Bill of Rights could be suspended without due process, and I'm also wondering how the government will now define "probable cause."

In this particular case, the government has basically conceded that they screwed up and have settled with the plaintiff.

Aiken's ruling came in the case of Brandon Mayfield, a lawyer who was arrested and jailed for two weeks in 2004 after the FBI bungled a fingerprint match and mistakenly linked him to a terrorist attack in Spain. The FBI used its expanded powers under the Patriot Act to secretly search Mayfield's house and law office, copy computer files and photos, tape his telephone conversations, and place surveillance bugs in his office using warrants issued by the Foreign Intelligence Surveillance Court.

In a settlement announced in November 2006, the U.S. government agreed to pay $2 million to Mayfield and his family and it apologized for the "suffering" that the case caused him. But the pact allowed Mayfield to proceed with a legal challenge to the constitutionality of the Patriot Act, resulting in yesterday's ruling by Aiken, who was nominated to the bench by President Bill Clinton in 1997.

So while it's not a huge surprise that the court ruled against the PATRIOT Act, it is gratifying to know that there are still courts that recognize the power of the Constitution over the unitary executive.

I'm sure there will be the usual rants and carrying on from the righties about "activist judges" taking the law into their own hands. At the risk of reminding them of the blantantly obvious, the purpose of the judiciary system -- which is still a co-equal branch of the government -- is to interpret and enforce the laws. So unless you think that putting the Fourth Amendment to use in its intended purpose is somehow judicial "activism," in which case you really need to go back to high school and re-take that government class you slept through, the federal court and Judge Aiken did exactly what they were supposed to do.

And more chinks are going to be found in the armor of that odious law.

Crossposted from Bark Bark Woof Woof.