Friday, September 28, 2007

Two PATRIOT act provisions declared unconstitutional

A Jurist article reports that Judge Ann Aiken of the U.S. District Court for the District of Oregon has declared the sneak and peek warrants and electronic eavesdropping under the "primary purpose test" in FISA warrants are unconstitutional.

CNN also has a copy of the opinion available.

The holding of the case appears to be this:

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. |Mayfield v. US, D. Or., Civil No. 04-1427-AA, page 44|
But I think this is the money quote:
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. |Mayfield v. US, D. Or., Civil No. 04-1427-AA, page 30|
More coverage at Concurring Opinions along with a nifty graph showing growth of FISA warrants under Bush administration.

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