Secrecy News

Constitutionality of FISA to be Reviewed

A federal appeals court in Oregon will hold a hearing next month on a government appeal of a 2007 judicial ruling that said the Foreign Intelligence Surveillance Act (FISA) is unconstitutional.

The FISA is a statute that regulates domestic intelligence, and generally requires judicial authorization for intelligence search and surveillance within the United States.  Critics of Bush Administration electronic surveillance activities such as the “Terrorist Surveillance Program” have argued that they unlawfully circumvented the provisions of the FISA.

But the FISA itself, as modified by the USA PATRIOT Act, is unconstitutional, a federal court ruled on September 26, 2007 (pdf).

That ruling came in response to a challenge by Brandon Mayfield, who was erroneously arrested in connection with the Madrid bombings in 2004 based on a false fingerprint match and subsequent surveillance under the Foreign Intelligence Surveillance Act.  The FBI later apologized for his mistaken arrest and provided a financial settlement.  But Mayfield continued to challenge the legal foundation of the arrest.

He successfully argued that FISA, as modified by the PATRIOT Act, violates the Fourth Amendment because it eroded the requirement of probable cause as a pre-condition for obtaining a search warrant, and because it permitted warrants to be issued under FISA without a showing that the “primary purpose” of the search is to obtain foreign intelligence information (as summarized by Judge Vaughn Walker in a July 2008 opinion [pdf], at pp. 39-41).

Judge Ann Aiken of the District Court of Oregon agreed with this assessment in her September 2007 order and declared FISA unconstitutional.

The government promptly appealed that ruling, but the case has been dormant since May 2008.  A hearing on the appeal has now been scheduled for February 5, 2009 at the Ninth Circuit Court of Appeals in Portland, Oregon.

It is not known whether the incoming Obama Administration will reconsider the pending appeal of the lower court ruling.

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