ACLU Asks Court to Review Wiretapping Case

The ACLU is asking the Supreme Court to hear an appeal on a Michigan case filed against the NSA’s warrantless wiretapping program. That suit was filed on behalf of a group of journalists, scholars and others who had reason to believe that their phone calls may have been tapped due to their frequent contact with people in the Middle East. Judge Anna Diggs Taylor of the US District Court for Eastern Michigan, ruled in favor of the plaintiffs and issued an injunction stopping the program, but her injunction was stayed pending appeal.

The 6th Circuit Court of Appeals overturned that decision, ruling that the plaintiffs lacked standing to bring the suit. None of the plaintiffs could prove that their calls were tapped and the NSA refused to confirm that they were, invoking the state secrets privilege. The government argued that because it cannot defend itself in the case without revealing details about the surveillance program that would put national security at risk, not only could the plaintiffs not prove that they had standing, but the court itself had no jurisdiction to rule at all. Judge Taylor rejected that argument, but the appeals court overturned that ruling. Now the ACLU is asking the Supreme Court to hear their appeal (see the cert petition here).

In a distinct but related case, a Federal judge in Oregon recently struck down two provisions of the Patriot Act that allowed authorities to engage in search and seizure actions without first showing probable cause to a judge to get a warrant (see the ruling here). That case did not have a standing problem because the target of the illegal search and seizure, a Portland lawyer named Brandon Mayfield, was actually arrested for being involved in the Madrid train bombings on the basis of a false fingerprint identification.

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Mayfield is an American citizen and a former officer in the Army who had not been outside the US since 1994. He’s also a Muslim, which clearly had an effect on how the case was handled. After the FBI mistakenly identified his fingerprint as belonging to one of the bombers, they did “sneak and peek” searches and installed bugs in Mayfield’s home and office, tapped their phones and obtained protected information from third parties.

It should be noted that throughout this process, the Spanish police had already caught the suspects in the case and they disagreed with the FBI that Mayfield’s prints were a match and they didn’t have any links to Mayfield whatsoever. The FBI got a FISA court warrant for a complete search; they even seized their children’s homework. Mayfield was arrested and placed in lockdown. The issue in this case was whether the electronic surveillance and physical search provisions of the FISA law, which allows warrants to be issued for both without any showing of probable cause. Mayfield argued that without a showing of probable cause, any such search or seizure violates the 4th amendment. The text of the 4th amendment seems pretty clear:

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.

Not much ambiguity there. It should also be noted that this was a facial challenge, not an as-applied challenge. Mayfield was not merely arguing that the law was unconstitutionally applied to him, but that it is unconstitutional on its face and must be struck down entirely. The judge describes the actual law and how it works:

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. 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. 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.

In other words, the Patriot Act amendments to FISA significantly lower the standards that the 4th amendment sets for obtaining a warrant. And here is how that has a real life impact:

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.

Judge Aiken’s words are powerful:

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.

Well said, your honor.