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Originally published September 26, 2007 at 12:00 AM | Page modified September 26, 2007 at 9:19 PM

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Judge rules two provisions of USA Patriot Act unconstitutional

A federal judge ruled Wednesday that two provisions of the USA Patriot Act are unconstitutional because they allow search warrants to be...

PORTLAND, Ore. — A federal judge ruled Wednesday that two provisions of the USA Patriot Act are unconstitutional because they allow search warrants to be issued without a showing of 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."

Portland attorney Brandon Mayfield sought the ruling in a lawsuit against the federal government after he was mistakenly linked by the FBI to the Madrid train bombings in 2004.

The federal government apologized and settled part of the lawsuit for $2 million after admitting a fingerprint was misread. But as part of the settlement, Mayfield retained the right to challenge parts of the USA Patriot Act.

Mayfield claimed that secret searches of his house and office under the Foreign Intelligence Surveillance Act, or FISA, violated the Fourth Amendment's guarantee that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause ..."

Aiken agreed with Mayfield, repeatedly criticizing the government.

"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 wrote.

She said that by asking her to dismiss Mayfield's lawsuit, the U.S. Attorney General's office was "asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation what would deprive it of any real meaning. This court declines to do so."

"We are are reviewing the decision," said Justice Department spokesman Peter Carr, who declined further comment.

Mayfield, a Muslim convert, was taken into custody on May 6, 2004, because of a fingerprint found on a detonator at the scene of the Madrid bombing. The FBI said the print matched Mayfield's. He was released from custody on May 21, 2004, and the FBI admitted it had erred in saying the fingerprints were his and later apologized to him.

Before his arrest, the FBI put Mayfield under 24-hour surveillance, listened to his phone calls and surreptitiously searched his home and law office.

In a statement released by his attorney, Elden Rosenthal, Mayfield said 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."

The Mayfield case has been an embarrassment for the federal government. Last year, the Justice Department's internal watchdog faulted the FBI for sloppy work in mistakenly linking Mayfield to the Madrid bombings. That report said federal prosecutors and FBI agents had made inaccurate and ambiguous statements to a federal judge to get arrest and criminal search warrants against Mayfield.

Copyright © 2007 The Seattle Times Company

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