The New York Times
By Susan Jo Keller
Thursday 27 September 2007

    Washington - A federal judge in Oregon ruled Wednesday that crucial parts of the USA Patriot Act were not constitutional because they allowed federal surveillance and searches of Americans without demonstrating probable cause.

    The ruling by Judge Anne L. Aiken of Federal District Court in Portland was in the case of Brandon Mayfield, a lawyer in Portland who was arrested and jailed after the Federal Bureau of Investigation mistakenly linked him to the Madrid train bombings in March 2004.

    "For over 200 years, this nation has adhered to the rule of law - with unparalleled success," Judge Aiken's opinion said in finding violations of the Fourth Amendment prohibitions against unreasonable search and seizure. "A shift to a nation based on extraconstitutional authority is prohibited, as well as ill advised."

    The ruling is a new chapter in a legal battle that began after the Spanish police found a plastic bag with detonator caps in a van near the bombings, which killed 191 people and left 2,000 injured in the deadliest terrorist attack in Europe since World War II.

    Initially, the F.B.I. found no match for the fingerprints. But after reviewing a digitally enhanced set of the prints, the agency identified 20 possible matches, including Mr. Mayfield.

    Though Spanish officials had doubts about the match, federal agents began surveillance on him and his family, using expanded powers under the Patriot Act. Mr. Mayfield was jailed for two weeks before a federal judge threw out the case.

    Mr. Mayfield, 38, who was born in Oregon and brought up in a small town in Kansas, converted to Islam in 1989. He was a lawyer in a child custody case for Jeffrey Leon Battle, who had been convicted of conspiring to aid the Taliban and Al Qaeda.

    Mr. Mayfield said his religion and legal work had led investigators to be overzealous in connecting him to the Madrid plot.

    Mr. Mayfield sued the government, which apologized and agreed to a $2 million settlement last November. The settlement included an unusual condition that freed the government from future liability with one exception. Mr. Mayfield was allowed to continue a suit seeking to overturn parts of the Patriot Act.

    It was that suit on which Judge Aiken ruled Wednesday. Her opinion said the court recognized that "a difficult balance must be struck in a manner that preserves the peace and security of our nation while at the same time preserving the constitutional rights and civil liberties of all Americans."

    In examining the history of the Federal Intelligence Surveillance Act, the opinion discussed a change by Congress in October 2001, under the Patriot Act, that allows surveillance and searches if the government declares that "a significant purpose" of that activity is gathering foreign intelligence. In the past, such searches and surveillance had been allowed if "the purpose" was to obtain foreign intelligence.

    Congress's intent, the opinion said, was "to break down barriers between criminal law enforcement and intelligence gathering." Judge Aiken said a practical effect of "a seemingly minor change in wording" was to allow the government to avoid the constitutional probable cause requirement.

    "In place of the Fourth Amendment," the judge wrote, "the people are expected to defer to the Executive Branch and its representation that it will authorize such surveillance only when appropriate."

    She said the government was "asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning."

    A spokesman for the Justice Department, Peter Carr, said it was reviewing the decision and declined to comment further.

    A lawyer for Mr. Mayfield, Elden Rosenthal, issued a statement on his behalf saying that Judge Aiken "has upheld both the tradition of judicial independence and our nation's most cherished principle of the right to be secure in one's own home."

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