Another provision of Patriot Act found unconstitutional

Key provisions of the USA Patriot Act, which allow a secret court to authorize wiretaps and searches in criminal cases if the government says foreign intelligence is involved, violate constitutional standards that are more than 200 years old, a federal judge ruled Wednesday.

It was the second judicial rebuff this month to the Patriot Act, the wide-ranging surveillance and detention law that was rushed through Congress in the wake of the Sept. 11, 2001, terrorist attacks. Three weeks ago, a federal judge in New York declared unconstitutional the FBI’s use of national security letters – subpoenas issued without court review – to obtain private communications records. The judge said the permanent gag orders imposed on the targets of the letters violate freedom of speech.

Wednesday’s ruling, if upheld on appeal, would strike down another significant provision, which blurred the long-standing line between foreign intelligence-gathering and criminal searches.

A 1978 law, the Foreign Intelligence Surveillance Act, allowed a newly created court, meeting behind closed doors, to approve searches and wiretaps without a traditional warrant, if the government said the purpose was to collect foreign intelligence.

The Patriot Act broadened the law to include searches whenever foreign intelligence was a significant purpose, even if the primary purpose was to gather evidence of a crime – as in Mayfield’s case. The change greatly expanded federal agents’ ability to conduct physical or electronic surveillance in certain cases without having to make a detailed presentation of evidence to a judge.

“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,” Aiken said.

Under the Patriot Act, she said, federal authorities can sidestep that requirement by asserting that one purpose of the surveillance is to gather foreign intelligence information – an assertion presented in secret to a special court that has little choice but to take the government’s word for it.

Aiken said the law is an unconstitutional evasion of the Fourth Amendment, which forbids searches in criminal cases unless officers first obtain a warrant from a judge, based on information that a crime has been committed and evidence is likely to be found in a specific place. She also noted that federal agents, under the Patriot Act, don’t have to tell the secret court what items or information they are looking for.

“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,” Aiken said.