A federal judge in Portland heard oral arguments Monday on whether to declare part of the USA Patriot Act unconstitutional. The case stems from the mistaken arrest of attorney Brandon Mayfield for the 2004 train bombings in Madrid, Spain. But the settlement allow the narrow court debate Monday Colin Fogarty reports.
The question before Judge Ann Aiken is not whether attorney Brandon Mayfield was wrongly accused of having ties to the Madrid train bombing. Last year, the government apologized for that error and settled for $2 million.
The question isn't even whether the government generally has the authority to search the homes of what the law calls “agents of a foreign power”, people the government suspects are a threat to national security. The Brandon Mayfield case at this point is more narrow than that.
The lawsuit challenges the constitutionality of one provision of the USA Patriot Act. The law was first passed in the wake of the 9/11 attacks and amended the Foreign Intelligence Security Act or FISA.
The change made it easier for the FBI to define someone as an “agent of a foreign power” and get a warrant to search that person's home. The process is so easy that Mayfield attorney Eldon Rosenthall said the law reduces judges to what he called “clerks”.
Eldon Rosenthall: "Brave judges can stop this inch by inch reduction of our civil liberties and only brave judges can do this in a time of perceived crisis. There's no way that a FISA application to search is constitutional."
Rosenthall was part of a team of lawyers that included celebrity attorney Gerry Spence.
He railed on the Patriot Act as a form of tyranny, declaring “democracy cannot long endure under the darkness of secrecy”.
Gerry Spence: "The government says “We'll take care of you. We'll keep you safe. All you have to do is to give up your rights as an American citizen”. Well, the last I heard was that thousands and thousands of American men and women gave up their lives to make sure that we had those rights."
But the sweeping condemnations by Spence could not have differed more sharply from the quiet style of the government's attorney.
US Department of Justice lawyer Jeffery Buckholtz did not comment to reporters. But in court, he methodically defended the Patriot Act as constitutional.
Buckholtz said investigations into threats to national security are different from criminal investigations and that those lower standards in the Patriot Act are reasonable for probes into agents of a foreign power. And besides, Buckholtz agued, Mayfield doesn't have standing to sue the government because he no longer faces prosecution.
But outside the courthouse, Mayfield himself said the government is still holding 14,000 documents on his family.
Brandon Mayfield: "We don't know where these documents are. They took photographs and tapes and recordings from probably our most intimate conversations, myself and my wife. And we don't know where they placed the listening devices. And where have they distributed these documents."
Mayfield is hoping federal district judge Ann Aiken will follow a court ruling last week in New York. A judge there declared a separate provision of the Patriot Act unconstitutional.
Aiken gave little indication of how she'll decide this case. But as the hearing ended, she said she would rule “shortly”.