Upon further research, the reasoning of the Oregon court is open to attack and as discussed here, the court’s ruling will be reversed on procedural grounds.

From the Plaintiffs’ (Mayfields’) Memorandum in Mayfield v. United States:

In March 2004, Brandon Mayfield - a United States citizen, an Army veteran, a member of the Oregon State Bar - unknowingly found himself, along with his wife and three school age children, within the crosshairs of the United States government. The full power of the federal law enforcement and foreign intelligence communities was focused upon the Mayfield family. The family’s most intimate conversations were recorded. They were followed. When the FBI thought the Mayfields were not at home or at work, FBI agents on multiple occasions surreptitiously entered their house and law office, looking at and copying their personal and private documents, legal files and computer hard drives. The government admits that over 300 photographs were taken inside the Mayfield home, and additional photographs inside Mr. Mayfield’s law office. On at least one occasion one of the Mayfield children cowered in a bedroom closet while government agents searched the family home. Mr. Mayfield had committed no crime, and no court had approved the eavesdropping, wiretapping, or covert physical searches of the Mayfields’ home or law office under the traditional Fourth Amendment probable cause warrant requirements.

While the latest decision in Oregon Federal District Court by Judge Ann Aiken ruled two of the Patriot Act’s amendments to FISA unconstitutional, the ultimate outcome will be nothing to cheer about.

The Defendants (the United States) correctly point out in their Memorandum that a Court must first address the threshold issue jurisdictional question of standing before it can reach the merits of the Mayfields’ claim of unconstitutionality.

“Article III of the Constitution confines the federal courts to adjudicating actual ‘cases’ and ‘controversies.’” Allen v. Wright, 468 U.S. 737, 750 (1984). To show standing, plaintiffs must satisfy three elements: (1) an injury-in-fact which is concrete and particularized, and actual or imminent; (2) a casual connection between the injury and the government’s conduct; and (3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

While Judge Aiken did address this issue, her reasoning was questionable and the government can easily erase her ruling in the future. As such, the Mayfields will be unable to prove standing on appeal. Therefore, the merits of the case (FISA constitutionality) will not be addressed on remand. That “remand” back to the District Court will likely be ordered by the Supreme Court and not the 9th Circuit Court of Appeals given the track record of the 9th Circuit Court of Appeals.

The Mayfields do not directly assert standing in their Memorandum. The facts stated therein, however, could suffice:

Although the damages portion [$2 Million] of the Mayfield family’s claims has now been settled, and the government has apologized for its actions against the Mayfield family, the government continues to retain derivative material seized from Mr. Mayfield’s law office and the family home under the auspices of the Patriot Act. The government admits that Brandon Mayfield and his family were subjected to electronic surveillance, including wiretaps, and covert physical searches of Mr. Mayfield’s home and law office. The government admits that during the covert physical searches, photographs were taken in both the Mayfields’ family home and law office. Included in the unidentified materials copied from Mr. Mayfield law office were items from confidential client files. The government claims it not only had the right to spy and intrude upon the Mayfield family home and Mr. Mayfield’s law office, but also claims the right to disseminate personal and private information gleaned from the physical and electronic searches and surveillance throughout the federal government, and the right to retain this information (i.e., “derivative material”) indefinitely. [Plaintiffs’ Mem.]

Judge Aiken appeared to argue for the Mayfields’ in her decision:

Specifically, plaintiffs establish standing with an on-going actual injury-in-fact which is concrete and particularized; that is, the government’s continued retention of derivative FISA materials collected by covert surveillance and searches from Mayfield, his wife, and their children. “Derivative FISA materials” are defined as follows: “[A]ny materials, in whatever form or place, derived directly or indirectly from or related to the FISA take as defined herein[.]” Settlement Agreement, Def’s Ex. 1. The government provides that derivative materials may include photocopies or photographs of documents from confidential client files in Mayfield’s law office, summaries and excerpts from the computer hard drives from the Mayfield law office and plaintiffs’ personal computers at home, analysis of plaintiffs’ personal bank records and bank records from Mayfield’s law office, analysis of client lists, websites visited, family financial activity, summaries of confidential conversations between husband and wife, parents and children, and other private activities of a family’s life within their home. These materials, in a derivative form, have been distributed to various government agencies. The continued retention by government agencies of this material constitutes a real and continuing injury-in-fact to plaintiffs.

Therefore, the entire basis for standing is the government’s retention of the Mayfields’ FISA materials.

Judge Aiken acknowledged this in her decision:

It is uncontested that plaintiffs have settled all claims for any past injuries, and as a matter of law past injuries do not support standing to seek prospective relief such as a declaratory judgment of facial unconstitutionality. In addition, the defendant asserts that plaintiffs cannot show that their alleged fear of future use of derivative FISA materials would be redressed by the only relief they can obtain - a declaratory judgment that 50 U.S.C. §§ 1804 and 1823 violate the Fourth Amendment on their face.

So the government will [claim to] have turned over or destroyed all “derivative FISA materials” regarding the Mayfields before the appellate process is complete.

Therefore, there will be no ongoing injury - thus no standing there. Judge Aiken has stated that a prospective injury does not confer standing as well.

As such, a simple payment of Two Million Dollars by our federal government (our tax dollars) covers that last prong - prior injury to the Mayfields. And for that, the Mayfields will no longer have standing - and the courts will not be able to reach the issue of constitutionality of FISA on remand.

$2 Million - a small price to pay to keep FISA in tact.

But the true cost should be measured in the evisceration of the Fourth Amendment.