Congress is taking another swing at amending the Foreign Intelligence Surveillance Act. A proposed bill by the Democrats in Congress, H.R. 3773 entitled “Responsible Electronic Surveillance That is Overseen, and Effective Act of 2007” or the “RESTORE Act of 2007” (how witty) passed both the House Intelligence and Judiciary Committees on Wednesday.

Naming this act “RESTORE” is more than a stretch. It doesn’t even pass the laugh test. In their proposed legislation, Congressional Democrats (a.k.a. parliamentary invertebrates) have done next to nothing to “restore” the protections of the Fourth Amendment of the Constitution.  Read more 

Unfortunately, we probably won’t get an actual review of the merits of “Mayfield v. United States due to a lack of standing. But just for kicks, and on the off chance that someday a plaintiff might be able to get to the merits, an analysis of Judge Ann Aiken’s decision regarding FISA is worth while.

In the Plaintiffs’ (Mayfields’) Amended Complaint, attorney Gerry Spence seeks the following on behalf of his clients:

Plaintiffs seek a declaratory judgment that 50 U.S.C. §§ 1804 and 1823, as amended by the Patriot Act, violate the Fourth Amendment of the United States Constitution, on their face, because they:

a. permit the federal government to perform covert physical searches and electronic surveillance and wiretaps of the home, office and vehicles of a person without first requiring the government to demonstrate to a court the existence of probable cause that the person has committed a crime;

b. permit the federal government to perform covert physical searches and electronic surveillance and wiretaps of a person without first requiring the government to demonstrate to a court that the primary purpose of the searches and surveillance is to obtain foreign intelligence information; and

c. permit the federal government to covertly collect, disseminate and retain information collected through covert physical searches and electronic surveillance without first requiring the government to demonstrate to a court the existence of probable cause that the person who is the target of physical searches and electronic surveillance has committed a crime, or, alternatively, that the primary purpose of the searches and surveillance are to obtain foreign intelligence information.

Based on Judge Aiken’s decision I say, Gerry Spence for next Justice of Supreme Court rather than Judge Aiken!  Read more 

The outcome in this case seemed like a victory for the Constitution.

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.  Read more