by The WaPo reports that a U.S. District court ruled earlier today that two provisions of the Patriot Act are unconstitutional because warrants issued under FISA may not demonstrate probable cause:
U.S. District Judge Ann Aiken ruled that the Foreign Intelligence Surveillance Act, as amended by the Patriot Act, “now permits the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment.”
…
“For over 200 years, this Nation has adhered to the rule of law _ with unparalleled success. A shift to a Nation based on extra-constitutional authority is prohibited, as well as ill-advised,” she [Judge Aiken] wrote.
While this decision will not make the Bush administration or security hawks happy I believe that it is the correct ruling.
Though much has happened since the tumultuous times after 9/11, it’s still crystal clear in my mind how the administration redefined patriot to mean a person who agreed, without question, in their plans to secure the nation, regardless of what Constitutional compromises might be required. Republicans, led by Bush and Cheney, proceeded to use patriotism as a club to beat down dissent, a heavy-handed tactic that only worked because of the word’s new meaning.
The Patriot Act was one of the primary products of that politically brutal effort and one that I think history will show to have been a mistake for the nation.
Probable cause, like habeous corpus, is a central tenet of the justice system. It should not have been skirted for the last 5 years and should be restored to its rightful place as a right held by all Americans, the sooner the better.
I disagree with you on this (what a surprise). Historically, in time of war, dissent has been “clubbed down” with patriotism (and sometimes with real clubs). One has only to look back the methods of Woodrow Wilson and his supporters in World War I (that included loading anti-war protesters into cattle cars in Los Angeles and dumping them in the Arizona Desert, or passing legislation that allowed the gov’t to shut down any media outlet that criticized the war in any way).
The PATRIOT act has some flaws (that were mostly corrected in the second version of the bill), but has proven to be a very useful tool in fighting terrorism. The idea that the FBI and the CIA could not share information was never a good one in a time when global travel is easy and cheap. As for probable cause…it has never been lost. FISA court warrants are restricted in nature to non-US persons and/or to those working for a foreign power.
All of that also ignores that Congress granted the Executive Branch the power to conduct operations against Al Qaeda and their allies which includes broad powers both abroad and at home to conduct intelligence gathering. I could point out that Aldrich Ames was convicted partially using evidence that was seized without use of a warrant from his house by the Clinton administration by the same authority that President Bush uses to justify his actions (and in fact somewhat weaker since President Clinton had no formal authority to conduct operations against Russia which also lead to his acquittal on charges of treason).
In the end the individual who brought this case was misidentified by the US gov’t due to a technical error (a misread fingerprint). This lead them to classify them as connected to the Madrid (3/11) bombings. Now, luckily for all the individual was not connected and the gov’t has handsomely re-numerated them from their troubles (to the tune of $2MM). This suit was to challenge the constitutionality of the gov’t’s ability to surveil a person who was acting as an agent of a foreign power (or in this case suspected of doing so). That, by its definition, is a probable cause for surveillance. The probable cause was a mistake in this case…but it still existed.
All of that also ignores that in the US we have a long tradition of warrantless search and seizures. Any police officer can saerch your car without a warrant. We consider that reasonable. Is it reasonable that a person who is tied to a foreign power currently in conflict with the US should also be able to be searched? For me it is. For you, not so much.