Metropolitan News-Enterprise


Monday, December 11, 2009


Page 3


Ninth Circuit Overturns Ruling Striking Down Part of FISA


By SHERRI M. OKAMOTO, Staff Writer


An Oregon attorney once suspected of participating in the 2004 Madrid train bombings lacked standing to challenge various provisions of the Foreign Intelligence Surveillance Act as unconstitutional, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel vacated U.S. District Court Chief District Judge Ann L. Aiken of the District of Oregon’s decision finding the challenged provisions unconstitutional, without reaching the merits of Brandon Mayfield’s claim.

Mayfield, a 43-year old U.S. citizen who lived with his wife and three children in a suburb of Portland, Ore., was accused of participating in the March 11, 2004, bombing which killed 191 people and injured another 1,600 people.

An FBI fingerprint specialist identified Mayfield’s left index fingerprint as a match with a fingerprint recovered by Spanish authorities from a plastic bag containing explosive detonators found near the bombing site.

Listening Devices

After the match was made, the FBI applied to the Foreign Intelligence Security Court for authorization to place electronic listening devices in the Mayfield home, which was personally approved by John Ashcroft, then the attorney general of the United States.

Wiretaps were also placed on Mayfield’s office phone, which was searched, along with his home.

On May 6, 2004, Mayfield was arrested and imprisoned. His family was not informed where he was being held, but was told that his fingerprints matched those of the Madrid train bomber and that he was the prime suspect in a crime punishable by death. Various news media also identified him as being linked to the Madrid bombings.

About two weeks later, news reports revealed that Spanish authorities had matched the fingerprint the FBI said was Mayfield’s to an Algerian citizen named Ouhane Daoud and Mayfield was released.

Mayfield, his wife, and his children then filed suit against the government asserting claims for unlawful arrest and imprisonment; unlawful searches, seizures, and surveillance; and a claim under the Privacy Act for leaking information to the media about Mayfield’s arrest. They also sought the return of property seized and asserted a Fourth Amendment challenge to the constitutionality of several FISA provisions and the PATRIOT Act.

Settlement Reached

The government eventually settled most of the Mayfields’ claims, agreeing to pay $2 million in compensatory damages, destroy documents relating to the electronic surveillance conducted, return all seized physical materials, and apologize to Mayfield and his family.

In return, Mayfield agreed to release the government of all liability or further litigation, except as to a claim challenging the constitutionality of 50 U.S.C. §§ 1804 and 1823—the portions of FISA, as amended by the PATRIOT Act, that allow the government to conduct physical searches, electronic surveillance and wiretaps of residences and offices without requiring proof of probable cause or an assertion that the primary purpose of such activities is to gather foreign intelligence information.

The parties agreed that the sole relief that Mayfield could seek or that the court could award with regard to this claim would be a declaratory judgment.

Amended Complaint

Mayfield filed an Amended Complaint for Declaratory Judgment in December 2006 asserting that Secs. 1804 and 1823 violated the Fourth Amendment. He claimed that he continued to suffer injury because the government refused to identify and destroy all materials derived from the FISA searches and seizures, and that he feared future uses of the materials and FISA against him and his family.

Both Mayfield and the government moved for summary judgment. The government also moved to dismiss on the ground that Mayfield did not have standing. Aiken denied the motion to dismiss, finding a live controversy over which the district court had jurisdiction.

In granting summary judgment to Mayfield, Aiken determined that Secs. 1804 and 1823 were unconstitutional because they violate the Fourth Amendment’s requirement of probable cause, and because they authorize FISA activities as long as a “significant purpose”—rather than the “primary purpose” required pre-Patriot Act—is to gather foreign intelligence information.

Standing Issue

Writing for the appellate court, Judge Richard A. Paez only addressed the issue of standing. He agreed that Mayfield was suffering from an actual, ongoing injury caused by the government’s retention of derivative FISA materials but opined that a declaratory judgment was not likely redress that injury.

“If the statutes challenged by Mayfield were declared unconstitutional, there will be no direct consequence to him,” since such a declaratory judgment would not make it unlawful for the government to retain the derivative materials in its possession, Paez explained,

The jurist reasoned that the only relief that would redress the alleged Fourth Amendment violation was an injunction requiring the government to return or destroy the derivative materials. Since Mayfield had “bargained away” this, and all other forms of relief aside from a declaratory judgment, Paez concluded that Mayfield lacked standing to pursue his Fourth Amendment claim.

Judge Johnnie B. Rawlinson and U.S. District Judge Raner C. Collins of the District of Arizona, sitting by designation, joined Paez in his decision.

The case is Mayfield v. United States, 07-35865.


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