IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
BRANDON
MAYFIELD, an individual,
MONA MAYFIELD, an individual, and
SHANE MAYFIELD, SHARIA MAYFIELD,
and SAMIR MAYFIELD, individuals,
by and through their guardian
ad litem Mona Mayfield,
Plaintiffs,
vs.
UNITED STATES OF AMERICA,
Defendant.
_______________________________________
Gerry Spence
The Spence Law Firm LLC
15 South Jackson Street, P.O. Box 548
Jackson, Wyoming 83001
Elden M. Rosenthal
Rosenthal & Greene, P.C.
1001 S.W. Fifth Avenue, Suite 1907
Portland, Oregon 97204
Michele Longo Eder
Michele Longo Eder, LLC
4 SW High Street, P.O. Box 1530
Newport, Oregon 97365
Attorneys for plaintiffs
Page 1 - OPINION AND ORDER
Peter D. Keisler
Assistant Attorney General
Karin J. Immergut
United States Attorney
Jeffrey S. Bucholtz
Principal Deputy Assistant Attorney General
Elizabeth J. Shapiro
Assistant Director
Renee S. Orleans
Nicholas A. Oldham
Trial Attorneys
U.S. Department of Justice
Federal Programs Branch, Civil Division
20 Massachusetts Avenue, N.W., P.O. Box 883
Washington, D.C. 20044
Attorneys for defendant United States of America
AIKEN, Judge:
Plaintiffs' Amended Complaint requests declaratory relief
that the Foreign Intelligence Surveillance Act ("FISA"), as
amended by the Patriot Act, is unconstitutional.
PROCEDURAL BACKGROUND
Plaintiffs filed this case on October 4, 2004, alleging
various civil rights violations. Specifically, plaintiffs
alleged a Bivens1 claim for unlawful arrest and imprisonment and
unlawful searches and seizures against four individual
defendants. See Complaint, Claims 1-10, ¶¶ 1-74.
Plaintiffs also brought a claim under the Privacy Act, 5
U.S.C. § 552a, alleging the defendants began "leaking"
information contained within the Department of Justice ("DOJ")
_________________________________________
1 Bivens v. Six Unknown Named Agents of the Federal Bureau
of Narcotics, 403 U.S. 388 (1971).
Page 2 - OPINION AND ORDER
and the Federal Bureau of Investigation ("FBI") files to the
national and international media regarding plaintiff Brandon
Mayfield ("Mayfield") and his arrest. Id., Claim 11, ¶¶ 75-86.
Plaintiffs moved for injunctive and declaratory relief
against defendants DOJ and the FBI FISA searches and
surveillance. See Pub. L. No. 95-511, 92 Stat. 1790 (Oct. 25,
1978), 50 U.S.C. ¶¶ 1801-1811. Id., Claim 12, ¶¶ 87-90. Claim
Twelve included plaintiffs' challenge to the constitutionality of
portions of the "Patriot Act" (The United and Strengthening of
America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272
(Oct. 26, 2001)). Id., ¶ 89. Finally, plaintiffs brought a
claim for the return of property improperly seized. Id., Claim
13, ¶¶ 91-93.
Subsequently, motions were filed by both parties. The court
heard oral argument on motions, and on July 28, 2005, issued an
opinion, Mayfield et al. v. Gonzales et al., 2005 WL 1801679 (D.
Or. 2005)(doc. 83), ruling, in part, as follows: (1) defendant
John T. Massey's motion to dismiss based on qualified immunity,
or lack of personal jurisdiction, or in the alternative for
summary judgment was denied; (2) defendants Werder's, Green's and
Wieners' motion to dismiss or alternative motion for summary
judgment based on qualified immunity, lack of personal
jurisdiction, failure to state a claim or alternatively, for
Page 3 - OPINION AND ORDER
summary judgment was denied; and (3) defendants DOJ's and FBI's
motion to dismiss counts twelve and thirteen of the Complaint was
denied.
On September 23, 2005, defendants filed an interlocutory
appeal of this court's ruling with the Ninth Circuit Court of
Appeals. However, on December 7, 2006, the Court of Appeals
granted appellants' motion under Federal Rule of Appellate
Procedure 42(b) for voluntary dismissal of their appeal.
In November 2006, the parties informed this court they had
reached a stipulated settlement regarding all issues except the
one currently before this court. The court signed the stipulated
settlement agreement on November 29, 2006.2
On December 6, 2006, plaintiffs filed an Amended Complaint
for Declaratory Judgment. Pending before this court are the
parties' cross-motions for summary judgment and defendant's
motion to dismiss based on jurisdiction. The court held oral
argument on September 10, 2007. The parties provided the court
with written briefs, including supplemental briefs, in addition
_____________________________________
2 The Settlement Agreement signed by this court limits
plaintiffs' remaining claim to a facial (rather than as-applied)
challenge to 50 U.S.C. §§ 1804 and 1823. Plaintiffs' claim is to
be litigated based on the Amended Complaint, the parties'
Recitation of Stipulated Facts, and memoranda of law. Moreover,
the relief available to plaintiffs if they prevail is a
declaratory judgment that one or both of these two provisions
violates the Fourth Amendment. See Stipulation for Compromise
Settlement and Release ("Settlement Agreement"), attached as
Def's Ex. 1.
Page 4 - OPINION AND ORDER
to comprehensive oral argument. Following careful consideration
of all the arguments, plaintiffs' summary judgment motion is
granted, and defendant's summary judgment motion and motion to
dismiss are denied.
FACTUAL BACKGROUND3
In brief, the facts as alleged by plaintiffs are as follows:
On March 11, 2004, in Madrid, Spain, terrorists' bombs exploded
on commuter trains, murdering 191 persons, and injuring another
1600 persons, including three United States citizens. Shortly
after the bombings, the Spanish National Police ("SNP") recovered
fingerprints from a plastic bag containing explosive detonators.
The bag was found in a Renault van located near the bombing site.
On March 13, 2004, the SNP submitted digital photographs of
the latent fingerprints lifted from the plastic bag to Interpol
Madrid, which then transmitted the digital photographs to the FBI
in Quantico, Virginia. On that same day, the Latent Print Unit
of the FBI initiated an Automated Fingerprint Identification
System ("AFIS") search in an attempt to match the latent prints
received from Spain with known prints in the FBI computer system.
The FBI was unable to locate a fingerprint match.
On March 14, 2004, the FBI requested and received from Spain
higher resolution digital photographs of the eight latent prints
____________________________________
3 These facts are restated as set forth in the Opinion
published by this court on July 28, 2005, cited above.
Page 5 - OPINION AND ORDER
and on March 15, 2004, another AFIS search was performed. The
FBI technicians programmed the computer to return 20 candidates
whose known prints had features in common with what was
identified as Latent Finger Print #17 ("LFP #17"). On March 15,
2004, the computer produced 20 candidates that met the criteria.
Each candidate was identified by an AFIS "score," a number that
reflected a rank as to how closely the AFIS computer determined
each candidate's fingerprint matched certain features of LFP #17.
Also included was an identification number for each candidate
that allowed the FBI to retrieve the names, original fingerprint
cards, and demographic information of each candidate on the list.
Demographic information included name, date of birth, sex, race,
and social security number. This information allowed the FBI to
perform background checks on each of the 20 candidates.
Mayfield's AFIS "score" ranked #4 on the list of 20
candidates. Mayfield is an American citizen born in Oregon and
reared in Kansas. He lives with his wife and three children in
Aloha, Oregon, a suburb of Portland. Mayfield is 38 years old, a
former Army officer with an honorable discharge, and a practicing
Oregon lawyer. Prior to his arrest, he had not traveled outside
the United States since 1994, and he had never been arrested for
a crime. Plaintiffs allege that FBI examiners were aware of
Mayfield's Muslim faith and that this knowledge influenced their
examination of Mayfield's fingerprints.
Page 6 - OPINION AND ORDER
On March 17, 2004, a "Supervisory Fingerprint Specialist"
for the FBI, Agent Green, concluded that Mayfield's left index
fingerprint matched LFP #17. Plaintiffs allege that had Green
properly performed the fingerprint identification analysis, he
would have been compelled to declare that Mayfield's print did
not, in fact, match LFP #17. Plaintiffs allege that Green,
however, was improperly influenced by Mayfield's adherence to the
Muslim faith.
Green then submitted the print to Massey, an allegedly
"independent fingerprint examiner," for verification. Massey is
a former FBI employee, now retired, periodically hired by the FBI
on a contract basis to "perform forensic examination of latent
fingerprints." Plaintiffs allege that when Massey was employed
by the FBI, he was reprimanded on at least three occasions for
erroneously "identifying" fingerprints. Plaintiffs contend that
Massey was selected to "verify" the identification because his
"employment history of discipline for poor performance would
strongly motivate him to agree and verify the prior
identification." Plaintiffs believe that Massey was informed of
Green's prior identification of LFP #17 to Mayfield, and that
Mayfield was a practicing Muslim. Massey did, in fact, verify
that Mayfield's left index fingerprint matched LFP #17.
The alleged "match" was then submitted to a senior FBI
manager, Wieners, for verification. It is FBI policy that when
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there are less than 12 points of similarity between a latent
print and a known print, a senior manager must review the alleged
match. Plaintiffs allege that Wieners knew, prior to examining
the print, that two examiners before him had identified and
verified the purported match, and that Mayfield is Muslim.
Wieners also verified that LFP #17 matched Mayfield's print.
On March 20, 2004, the FBI issued a formal report matching
Mayfield's print to LFP #17. On March 21, 2004, FBI surveillance
agents began to watch Mayfield and to follow Mayfield and members
of his family when they traveled to and from the Bilal Mosque,
the family's place of worship; to and from Mayfield's law office,
his place of employment; to and from the children's school; and
to and from family activities.
Plaintiffs allege that at some point after the wrongful
fingerprint identification, the FBI applied to the Foreign
Intelligence Security Court ("FISC") for an order authorizing the
FBI to place electronic listening devices ("bugs") in the "shared
and intimate" rooms of the Mayfield family home; executed
repeated "sneak and peek" searches of the Mayfield family home,
occurring when the family was away from the home and performed
"so incompetently that the FBI left traces of their searches
behind, causing the Mayfield family to be frightened and believe
that they had been burglarized;" obtained private and protected
information about the Mayfields from third parties; executed
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"sneak and peek" searches of the law office of Brandon Mayfield;
and placed wiretaps on Mayfield's office and home phones. The
application for the FISA order before the FISC was personally
approved by the U.S. Attorney General at the time, John Ashcroft.
On April 2, 2004, Mayfield's prints were sent by the FBI to
Spain. Plaintiffs allege that by that date, the U.S. Government
had already been advised by the Spanish Government that Moroccan
immigrants were suspects in the Madrid bombing and had been taken
into custody, and that the Spanish Government was not aware of
any information connecting the Moroccans with Mayfield or anyone
else in the United States.
The SNP examined the FBI's report and Mayfield's
fingerprints, and concluded that there were dissimilarities in
the comparison of the two prints for which there was no
explanation. On April 13, 2004, the SNP provided a written
report to the FBI explaining that they had compared LFP #17 to
Mayfield's fingerprints, and concluded there was no match.
On April 21, 2004, the FBI sent one or more agents to Madrid
to meet with their Spanish counterparts. Spanish authorities who
met with the FBI agents "refused to validate" the FBI's
conclusion that LFP #17 and Mayfield's print were a match.
Plaintiffs allege that DOJ and FBI employees "concocted
false and misleading affidavits" in order to justify even more
intrusive searches and ultimately to justify Mayfield's arrest as
Page 9 - OPINION AND ORDER
a "material witness." An FBI investigator, Werder, submitted a
"concocted affidavit" to a federal judge of this court, which
stated that Green, Wieners, and Massey considered LFP #17 a "100%
positive identification" of Mayfield. Although the affidavits
stated that "preliminary findings" of the SNP "were not
consistent" with the FBI fingerprint analysis, no mention was
made of Spain's April 13, 2004, report to the FBI that stated the
SNP did not agree with the FBI's fingerprint match of LFP #17 and
Mayfield.
The affidavit included "speculative and prejudicial
narratives" focusing on Mayfield's religion and association with
co-practitioners. Plaintiffs cite as an example, Werders's
inclusion in his affidavit the fact that Mayfield attended a
mosque and advertised his legal services in "Jerusalem
Enterprises," or what are known as the "Muslim Yellow Pages," as
evidence connecting Mayfield to the bombings as a material
witness. Plaintiffs respond that the "Muslim Yellow Pages" also
includes advertising by major companies such as Avis, Best
Western and United Airlines. Plaintiffs allege that the
affidavit submitted to this court was knowingly or recklessly
false and misleading.
Due to Mayfield's protestations of innocence, and the issue
of whether Mayfield's prints actually matched LFP #17, the Judge
assigned to this matter ordered that LFP #17 be provided to a
Page 10 - OPINION AND ORDER
court-appointed expert witness for comparison to Mayfield's known
fingerprints. That expert, Kenneth Moses, was selected by
Mayfield and his defense attorneys. On May 19, 2004, Moses
testified in the material witness proceeding that he had
"compared the latent prints that were submitted on Brandon
Mayfield, and [he] concluded that the latent print is the left
index finger of Mr. Mayfield."
Based on these affidavits, broad search warrants were sought
and issued. Mayfield's family home and law office were searched.
Computer and paper files from his family home, including his
children's homework, were seized. Mayfield was ultimately
arrested and initially held in the lock down unit at the
Multnomah County Detention Center. His family was not told where
he was being held. He and his family were told, however, that he
was being held as a primary suspect on offenses punishable by
death, and that the FBI had made a 100% match of his fingerprint
with the Madrid train bombing fingerprint. Plaintiffs allege
that leaks to the media by the FBI and DOJ led to local,
national, and international headlines that Brandon Mayfield's
fingerprints linked him to the Madrid bombings.
Mayfield was ultimately arrested and imprisoned from May 6,
2004, through May 20, 2004. On May 19, 2004, the SNP advised the
FBI, and on May 20, 2004, news reports revealed, that Spain had
matched the Madrid fingerprint with an Algerian, Ouhane Daoud.
Page 11 - OPINION AND ORDER
Mayfield was released from prison the following day.4
STANDARDS
Motion to Dismiss
Under Fed. R. Civ. P. 12(b)(6), once a claim has been stated
adequately, it may be supported by "showing any set of facts
consistent with the allegations in the complaint." Bell Atlantic
Corp. v. Twombly,____ U.S.____ , 127 S.Ct. 1955, 1960 (2007). See
also, Litchfield v. Spielberg, 736 F.2d 1352, 1357 (9th Cir.
1984), cert. denied, 470 U.S. 1052 (1985). For the purpose of
the motion to dismiss, the complaint is liberally construed in
favor of the plaintiffs, and its allegations are taken as true.
Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983).
Motion for Summary Judgment
Summary judgment is appropriate "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). Substantive law on an issue determines the materiality of
a fact. T.W. Electrical Service, Inc. v. Pacific Electrical
Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987). Whether
the evidence is such that a reasonable jury could return a
_____________________________________
4 However, Mayfield was then held on home detention from May
21 through May 24, 2004.
Page 12 - OPINION AND ORDER
verdict for the nonmoving party determines the authenticity of a
dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
The moving party has the burden of establishing the absence
of a genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). If the moving party shows the absence
of a genuine issue of material fact, the nonmoving party must go
beyond the pleadings and identify facts which show a genuine
issue for trial. Id. at 324.
Special rules of construction apply when evaluating summary
judgment motions: (1) all reasonable doubts as to the existence
of genuine issues of material fact should be resolved against the
moving party; and (2) all inferences to be drawn from the
underlying facts must be viewed in the light most favorable to
the nonmoving party. T.W. Electrical, 809 F.2d at 630.
DISCUSSION
Plaintiffs' Amended Complaint challenges the lawfulness of
the physical searches, electronic eavesdropping and wiretapping
performed pursuant to authorization from the FISC Court in
Washington D.C., and the lawfulness of the government's continued
retention of materials derived from those searches,
eavesdropping, and wiretapping. Plaintiffs allege that 50 U.S.C.
§ 1804 (electronic surveillance under FISA) and 50 U.S.C. § 1823
Page 13 - OPINION AND ORDER
(physical searches under FISA) violate the Fourth Amendment5 on
their face. Specifically, plaintiffs allege that pursuant to
FISA and in violation of the Fourth Amendment, they were
subjected to secret surveillance and searches of their home, law
office, vehicles, and communications.
Plaintiffs allege their private information gathered
pursuant to those searches has been disseminated to at least
eight agencies of the federal government, including the Central
Intelligence Agency, the National Security Council, the
Department of Defense, the Department of Homeland Security, the
DOJ, the FBI, the Department of the Treasury, and the National
Security Agency.
Plaintiffs challenge the Patriot Act amendments to FISA that
allow federal agents to circumvent Fourth Amendment probable
cause requirements when investigating persons suspected of
crimes. Amended Complaint, ¶¶ 23-24. 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. Id. ¶ 25. Finally, plaintiffs seek their
costs and disbursements necessarily incurred in this lawsuit.
________________________________
5 The Fourth Amendment states: "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, supported by Oath
or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized." U.S. Const.
Amend. IV.
Page 14 - OPINION AND ORDER
Id.
Background on FISA and the Patriot Act
FISA was enacted in 1978 to "provide a procedure under which
the Attorney General can obtain a judicial warrant authorizing
the use of electronic surveillance in the United States for
foreign intelligence purposes." S. Rep. No. 95-604, 95th Cong.
2d Sess. 5, reprinted at 1978 U.S.C.C.A.N. 3906. In 1994, FISA
was amended to permit applications for orders authorizing
physical searches as well as electronic surveillance. 50 U.S.C.
§§ 1821-1829.
FISA established two special courts: the FISC, which is
comprised of eleven district court judges appointed by the Chief
Justice of the United States Supreme Court, and the FISC of
Review, which is comprised of three district court or court of
appeals judges also appointed by the Chief Justice. 50 U.S.C. §
1803(a),(b). The FISC has jurisdiction to grant or deny
applications for orders authorizing electronic surveillance and
physical searches under the procedures specified in FISA, and the
FISC of Review has jurisdiction to review the denial of any
application made under FISA. 50 U.S.C. § 1822(b)-(d).
FISA also allows the Attorney General to authorize the
execution of an emergency search or surveillance so long as it is
approved by the FISC within 72 hours. 50 U.S.C. § 1824(e)(1)(A).
Applications for court orders authorizing searches or
Page 15 - OPINION AND ORDER
surveillance under FISA are made to the FISC under oath by a
federal officer with the approval of the Attorney General. 50
U.S.C. §§ 1801(g), 1804, 1823. The application must identify or
describe the target of the search or surveillance, and establish
that the target is either a "foreign power" or an "agent of a
foreign power." 50 U.S.C. §§ 1804(a)(3), 1804(a)(4)(A),
1823(a)(3), 1823(a)(4)(A). FISA defines "foreign power" to
include a "group engaged in international terrorism." 50 U.S.C.
§§ 1801(a)(1),(4). The definition of an "agent of a foreign
power" includes any person who "knowingly engages in clandestine
intelligence gathering activities for or on behalf of a foreign
power[,]" or any person who "knowingly engages in sabotage or
international terrorism, or activities that are in preparation
therefor, for or on behalf of a foreign power." 50 U.S.C. §§
1801(b)(2)(A),(c). Where a "United States person" - a citizen or
a permanent resident alien - is involved, the definition of an
"agent of a foreign power" requires, in most instances, a showing
of criminal activity. 50 U.S.C. §§ 1801(b)(2), (I).
In October 2001, Congress amended FISA to change the
language found in § 1804(a)(7)(B) from "the purpose" of the
search or surveillance is to obtain foreign intelligence
information to "a significant purpose" of the search or
surveillance is to obtain foreign intelligence information.
Congress's intent in amending § 1804(a)(7)(B) was to break down
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barriers between criminal law enforcement and intelligence
gathering. "Federal officers who conduct electronic surveillance
to acquire foreign intelligence information may consult with
Federal law enforcement officers . . . to coordinate efforts to
investigate or protect against" attack or other grave hostile
acts, sabotage or international terrorism, or clandestine
intelligence activities by foreign powers or by an agent of a
foreign power. 50 U.S.C. § 1806(k)(1)(A)-(C). The Act further
provides that coordination "shall not preclude" the government's
certification that a significant purpose of the surveillance is
to obtain foreign intelligence information, or the issuance of an
order authorizing the surveillance. Id. § 1806(k)(2).
Each FISA application must include a certification from a
high-ranking Executive Branch official, such as the Director of
the FBI, that the official "deems the information sought [by the
search or surveillance] to be foreign intelligence information,"
and that "a significant purpose" of the search or surveillance is
to obtain "foreign intelligence information." 50 U.S.C. §§
1804(a)(7)(A)-(B), 1823(a)(7)(A)-(B). FISA defines "foreign
intelligence information" to include information that "relates
to, and if concerning a United States person is necessary to"
protect the United States from espionage and international
terrorism, an actual or potential attack, or the national defense
or security of the United States generally. 50 U.S.C. §§
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1801(e)(1),(2).
An individual judge of the FISC reviews each FISA
application following its submission. 50 U.S.C. §§ 1805, 1824.
To approve an application, the judge must find that it
establishes "probable cause" to believe that the target of the
search or surveillance is a foreign power or an agent of a
foreign power. Where the target of the search or surveillance is
a U.S. citizen the judge must also find that the Executive
Branch's certification that a significant purpose of the search
or surveillance is to obtain foreign intelligence information is
not "clearly erroneous." 50 U.S.C. §§ 1805(a)(5), 1824(a)(5);
H.R. Rep. No. 95-1283, Part I, 95th Cong. 2d Sess. (1978), at 8081.
Plaintiffs' Allegations
Plaintiffs request a declaration from this court that FISA,
as amended by the Patriot Act, violates the Fourth Amendment
because it:
a. permit[s] 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[s] 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
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c. permit[s] 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 [is] to obtain foreign
intelligence information.
Id. at ¶ 25 a-c.
Prior to the Patriot Act, the government was required to
certify that the primary purpose of its surveillance was to
obtain foreign intelligence information. The Patriot Act now
authorizes FISA surveillance and searches as long as a
significant purpose of the surveillance and searches is the
gathering of foreign intelligence. 50 U.S.C. §§ 1804(a)(7)(B)
and 1823(a)(7)(B). This amendment allows the government to
obtain surveillance orders under FISA even if the government's
primary purpose is to gather evidence of domestic criminal
activity. See In re All Matters Submitted To The Foreign
Intelligence Surveillance Court ("In re FISC"), 218
F.Supp.2d
611, 615 n.2 (FISC 2002). The practical result of this
amendment, objected to by plaintiffs, is that in criminal
investigations, the government can now avoid the Fourth
Amendment's probable cause requirement when conducting
surveillance or searches of a criminal suspect's home or office
merely by asserting a desire to also gather foreign intelligence
information from the person whom the government intends to
Page 19 - OPINION AND ORDER
criminally prosecute. The government is now authorized to
conduct physical searches and electronic surveillance upon
criminal suspects without first proving to an objective and
neutral magistrate that probable cause exists to believe that a
crime has been committed. The government need only represent
that the targeted individual was an agent of a foreign power (a
representation that must be accepted unless "clearly erroneous")
and that "a significant purpose" of the surveillance and search
is to collect foreign intelligence.
Here, the government chose to go to the FISC, despite the
following evidence: Mayfield did not have a current passport; he
had not been out of the country since completing his military
duty as a U.S. Army lieutenant in Germany during the early 1990s;
the fingerprint identification had been determined to be
"negative" by the SNP; the SNP believed the bombings were
conducted by persons from northern Africa; and there was no
evidence linking Mayfield with Spain or North Africa. The
government nevertheless made the requisite showing to the FISC
that Mayfield was an "agent of a foreign power." That
representation, which by law the FISC could not ignore unless
clearly erroneous, provided the government with sufficient
justification to compel the FISC to authorize covert searches and
electronic surveillance in support of a criminal investigation.
(1) Defendant's Motion to Dismiss Plaintiffs' Amended Complaint
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A. STANDING
The defendant argues that this court lacks jurisdiction over
plaintiffs' facial constitutional challenge because plaintiffs
lack standing to seek declaratory relief against 50 U.S.C. §§
1804 and 1823. "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)(internal quotation marks and citations
omitted).
The defendant asserts that plaintiffs must show the FISA
provisions are causing them an ongoing injury-in-fact or are
likely to injure them in the future. Plaintiffs allege they
"fear future uses of FISA, as amended by the Patriot Act."
Amended Complaint, ¶ 25. Second, plaintiffs allege they "fear
the future uses of the derivative materials in government files."
Id. Finally, plaintiffs allege the government's mere possession
of derivative FISA materials injures them. Id.
Specifically, plaintiffs allege that prior to the
Page 21 - OPINION AND ORDER
commencement of this lawsuit, Mayfield, through his court-
appointed public defenders, demanded that then Attorney General
John Ashcroft detail the FISA searches and surveillance performed
and purge all government files of the information collected.
Ashcroft refused to do so, and plaintiffs allege that several
federal agencies continue to retain information collected during
the allegedly illegal and unconstitutional searches and
surveillance. Amended Complaint, ¶ 25.
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. The government contends that such a
declaratory judgment would protect plaintiffs against future
searches or surveillance targeting them under a struck-down
provision, but it would not prohibit any and all use of materials
already in the government's possession.
The court disagrees. Plaintiffs' claims allege an on-going
'case' or 'controversy' providing this court with jurisdiction to
adjudicate plaintiffs' claims pursuant to Article III.
Page 22 - OPINION AND ORDER
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.6
__________________________________________________
6 The court received the government's late filing titled,
"Notice of Supplemental Information." The court appreciates the
distinction between plaintiffs' pending FOIA requests (the
Page 23 - OPINION AND ORDER
Moreover, the cases relied upon by the government to support
its contention that plaintiffs lack standing are distinguishable.
These cases focus on claims that a past injury might occur again.
Plaintiffs do not rely on their past injury. Rather they
continue to suffer a present, on-going injury due to the
government's continued retention of derivative material from the
FISA seizure.
The government next asserts that a declaratory judgment will
fail to effectively "cure" any injury alleged by plaintiffs. If
plaintiffs prevail on their Amended Complaint, and the court
enters a declaratory judgment finding the challenged portions of
the Patriot Act unconstitutional, it is reasonable to assume that
the Executive Branch of the government will act lawfully and make
all reasonable efforts to destroy the derivative materials when a
final declaration of the unconstitutionality of the challenged
provisions is issued. This is sufficient to confer standing in
this case. See, e.g., Larson v. Valente, 456 U.S. 228, 243 n.15
(1982)("plaintiff satisfies the redressability requirement when
he shows that a favorable decision will relieve a discrete injury
to himself. He need not show that a favorable decision will
relieve his every injury.")(emphasis in original).
B. RIPENESS
Next, the defendant argues that plaintiffs cannot establish
_____________________________________________
"14,754 pages) and the remaining derivative FISA materials.
Page 24 - OPINION AND ORDER
that their claim is ripe. Ripeness is designed to "'prevent the
courts, through avoidance of premature adjudication, from
entangling themselves in abstract agreements.' [The Court's]
role is neither to issue advisory opinions nor to declare rights
in hypothetical cases." Thomas v. Anchorage Equal Rights Comms.,
220 F.3d 1134, 1138 (9th Cir. 2000)(en banc)(quoting Abbott Labs.
v. Gardner, 387 U.S. 136, 148 (1967)). To satisfy "this
jurisdictional prerequisite," the court must determine whether
"plaintiffs face 'a realistic danger of sustaining a direct
injury as a result of the statute's operation or enforcement.'"
Id. (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S.
289, 298 (1979)).
The defendant contends that plaintiffs' failure to establish
a sufficient likelihood of future injury also renders their claim
for declaratory relief unripe. The government argues it would be
"purely hypothetical and speculative to imagine that plaintiffs
ever would be targeted for future searches or surveillance under
the challenged provisions or that plaintiffs would ever be harmed
by any future use of derivative FISA materials." Defendant's
Memo, p. 3.
It is notable that, "in many cases, ripeness coincides
squarely with standing's injury in fact prong." Thomas, 220 F.3d
at 1138. In fact, when "measuring whether the litigant has
asserted an injury that is real and concrete rather than
Page 25 - OPINION AND ORDER
speculative and hypothetical, the ripeness inquiry merges almost
completely with standing." Id. at 1139 (internal quotation
omitted). Here, we have neither a hypothetical case nor an
abstract agreement. As discussed above, a declaratory judgment
striking the challenged sections of FISA will require the
Executive Branch to destroy or otherwise eliminate the derivative
materials currently maintained in government files. I find
plaintiffs have established an injury-in-fact, an injury that is
continuing and redressable. Thus, plaintiffs' injury is neither
hypothetical nor speculative, and therefore, this claim is ripe
for determination by this court.
In conclusion, defendant's motion to dismiss plaintiffs'
Amended Complaint based on this court lacking jurisdiction is
denied.
(2) Parties' Cross-Motions for Summary Judgment
A. Standard for Facial Challenge to a Statute
The defendant relies on United States v. Salerno, 481 U.S.
739, 745 (1987), to argue that a successful facial challenge to a
statute "must establish that no set of circumstances exists under
which the Act would be valid." First, this standard is more
flexible than defendant represents, and second, plaintiffs
adequately allege a facial challenge to the statute regardless of
the standard applied.
For example in Planned Parenthood v. Casey, the Court held
Page 26 - OPINION AND ORDER
that a statute restricting access to abortion could be facially
challenged if it presented an "undue burden" upon a
constitutional right. 505 U.S. 833, 876-77 (1992). Notably,
after the Court decided Casey, Justice Stevens stated that he did
"not believe the Court has ever actually applied such a strict
standard [as the Salerno standard], even in Salerno itself."
Washington v. Glucksberg, 521 U.S. 702, 739-40 (1997)(Steven, J.,
concurring in judgment). Additionally, in 1999, in a facial
challenge to a gang loitering ordinance, Justices Stevens, Souter
and Ginsberg labeled the Salerno standard "dictum" and stated
that "[t]o the extent we have consistently articulated a clear
standard for facial challenges, it is not the Salerno
formulation, which has never been the decisive factor in any
decision of this Court, including Salerno itself." City of
Chicago v. Morales, 527 U.S. 41, 55 n.22 (1999).
The Ninth Circuit, sitting en banc, determined the Casey
standard to be the appropriate standard for a facial challenge to
the Washington Natural Death Act. Compassion in Dying v. State
of Washington, 79 F.3d 790, 798 n.9 (9th Cir. 1995)("[S]ince the
claimed liberty issue in this case is in many respects similar to
the liberty issue involved in Casey, . . . we believe that the
Salerno test would not in any event be the appropriate one for
adjudicating a facial challenge to Washington's prohibition on
assisted suicide."), rev'd on other grounds, Washington v.
Page 27 - OPINION AND ORDER
Glucksberg, 521 U.S. 702 (1997). See also Planned Parenthood
of
Southern Arizona v. Lawall, 180 F.3d 1022 (9th Cir.
1999)(application of Casey standard in abortion challenge).
Subsequently, the Ninth Circuit held that while "Casey 'overruled
Salerno in the context of facial challenge to abortion statutes,'
. . . [it would] not reject Salerno in other contexts until a
majority of the Supreme Court clearly directs us to do so." S.D.
Myers, Inc. v. City and County of San Francisco, 253 F.3d 461,
467 (9th Cir. 2001).
Because the standard for reviewing a facial challenge to a
statute involving the violation of a fundamental civil liberty is
in flux, the court will consider whether plaintiffs' facial
challenge satisfies either standard. Under Casey, plaintiffs
must allege that the challenged sections of FISA, as amended by
the Patriot Act, place an "undue burden" on the fundamental
rights secured by the Fourth Amendment. Under the Salerno
standard, plaintiffs must show that no set of circumstances can
make constitutional the challenged sections of FISA, as amended
by the Patriot Act. Plaintiffs satisfy either standard.
B. Constitutionality of FISA, as amended by the Patriot Act
At issue here are two fundamental concerns: the safety of
our nation and the constitutional rights of citizens. With the
passage of the Patriot Act, these concerns are now placed in
conflict. The court recognizes that a difficult balance must be
Page 28 - OPINION AND ORDER
struck in a manner that preserves the peace and security of our
nation while at the same time preserving the constitutional
rights and civil liberties of all Americans.7
Prior to passage of the Patriot Act, the government would
have been required to follow the traditional process and
demonstrate probable cause to a "detached and neutral magistrate"
that Mayfield had committed a crime. Therefore, prior to issuing
a search warrant, the Fourth Amendment required that law
enforcement have reasonable grounds to believe that the law was
being violated. FISA does not contain this criminal standard of
probable cause. Instead, FISA contains a "foreign intelligence
standard" of probable cause which requires a showing that the
target may be an agent of a foreign government and the place or
facility to be searched is being used in furtherance of espionage
or terrorist activities.
Significantly, a seemingly minor change in wording has a
dramatic and significant impact on the application of FISA. A
warrant under FISA now issues if "a significant purpose" of the
surveillance is foreign intelligence. Now, for the first time
in our Nation's history, the government can conduct surveillance
to gather evidence for use in a criminal case without a
traditional warrant, as long as it presents a non-reviewable
____________________________________________________
7 See Doe v. Gonzalez et al., CV 04-2614 (S.D.N.Y. Sept. 6,
2007)(sections of the Patriot Act, as amended, authorizing the
issuance of "national security letters" held unconstitutional).
Page 29 - OPINION AND ORDER
assertion that it also has a significant interest in the targeted
person for foreign intelligence purposes.
Since the adoption of the Bill of Rights in 1791, the
government has been prohibited from gathering evidence for use in
a prosecution against an American citizen in a courtroom unless
the government could prove the existence of probable cause that a
crime has been committed. The hard won legislative compromise
previously embodied in FISA reduced the probable cause
requirement only for national security intelligence gathering.
The Patriot Act effectively eliminates that compromise by
allowing the Executive Branch to bypass the Fourth Amendment in
gathering evidence for a criminal prosecution.
In 1967, the Supreme Court held that a New York statute
authorizing electronic surveillance violated the Fourth Amendment
because: (1) "it did not requir[e] the belief that any particular
offense has been or is being committed; nor that the 'property'
sought, the conversations, be particularly described;" (2) it
failed to limit the duration of the surveillance to impose
sufficiently stringent requirements on renewals of the
authorization; and (3) the statute "has no requirement for notice
as do conventional warrants, nor does it overcome this defect by
requiring some showing of special facts." Berger v. New York,
388 U.S. 41, 58-60 (1967).
The Court specifically rejected the state's argument that
Page 30 - OPINION AND ORDER
Fourth Amendment requirements should be relaxed because the
surveillance statute was essential in its fight against organized
crime. The Court held:
[W]e cannot forgive the requirements of the Fourth
Amendment in the name of law enforcement. This is
no formality that we require today but a fundamental
rule that has long been recognized as basic to the
privacy of every home in America. While the
requirements of the Fourth Amendment are not inflexible,
or obtusely unyielding to the legitimate needs of law
enforcement, it is not asking too much that officers
be required to comply with the basic command of the
Fourth Amendment before the innermost secrets of
one's home or office are invaded. Few threats to
liberty exist which are greater than that posed by
the use of eavesdropping devices.
Id. at 62-63 (internal quotation and citation omitted).
Subsequently, the Supreme Court in Katz v. United States,
389 U.S. 347 (1967), held that the Fourth Amendment's probable
cause and warrant requirements apply to electronic surveillance.
In a footnote, however, the majority opinion expressly deferred
deciding whether the Fourth Amendment requires prior judicial
authorization of surveillance in cases involving national
security. Id. at 358 n.23. Four years later, the Supreme Court
revisited the issue in United States v. United States District
Court, 407 U.S. 297 (1972)(Keith). That case arose from the
prosecution of three citizens who were allegedly conspiring to
bomb a CIA office in Ann Arbor, Michigan. Id. at 299. While the
Supreme Court recognized both the Executive Branch's interest in
protecting national security and the value of electronic
Page 31 - OPINION AND ORDER
surveillance in detecting security threats, the Court nonetheless
noted:
There is understandably, a deep-seated uneasiness and
apprehension that this [surveillance] capability
will be used to intrude upon cherished privacy of
law-abiding citizens. We look to the Bill of Rights
to safeguard this privacy. Though physical entry
of the home is the chief evil against which the
wording of the Fourth Amendment is directed, its
broader spirit now shields private speech from
unreasonable surveillance.
Id. at 312-13(footnote omitted).
Ultimately, the Court rejected the Executive Branch's
arguments that "internal security matters are too subtle and
complex for judicial evaluation" and that "prior judicial
approval will fracture the secrecy essential to official
intelligence gathering." Id. at 320. Significantly, the Supreme
Court expressly rejected the Executive Branch's argument that
exceptions to the Fourth Amendment warrant requirement should be
recognized for domestic security surveillance and held that the
decision to conduct electronic surveillance cannot be left to the
discretion of law enforcement officials:
These Fourth Amendment freedoms cannot properly be
guaranteed if domestic security surveillance may be
conducted solely within the discretion of the Executive
Branch. The Fourth Amendment does not contemplate the
executive officers of Government as neutral and
disinterested magistrates. Their duty and responsibility
are to enforce the laws, to investigate, and to prosecute.
But those charged with this investigative and prosecutorial
duty should not be the sole judges of when to
utilize constitutionally sensitive means in pursuing
their tasks. The historical judgment, which the
Fourth Amendment accepts, is that unreviewed
Page 32 - OPINION AND ORDER
executive discretion may yield too readily to
pressures to obtain incriminating evidence and overlook
potential invasions of privacy and protected speech.
Id. 316-17 (internal citation and footnote omitted).
Finally, the Supreme Court noted the differences between
surveillance for criminal investigative purposes and surveillance
for intelligence purposes. The Court noted the "potential
distinctions between Title III criminal surveillance and those
involving domestic security," and suggested that Congress "may
wish to consider protective standards for the latter which differ
from those already prescribed for specified crimes in Title III."
Id. at 322.
After the Supreme Court's decision in Keith, and prior to
the enactment of FISA, numerous federal appellate courts
recognized our Nation's interest in security and affirmed
warrantless surveillance authorized within the Executive Branch,
because the purpose of the surveillance was foreign intelligence
gathering. See, e.g., United States v. Brown, 484 F.2d 418, 426
(5th Cir. 1973); United States v. Butenko, 494 F.2d 593 (3d Cir.
1974); United States v. Buck, 658 F.2d 871 (9th Cir. 1977). The
Third, Fifth and Ninth Circuits all held that warrantless
surveillance could be conducted by the Executive Branch only if
the purpose of this surveillance was to gather foreign
intelligence. Brown, 484 F.2d at 426; Butenko, 494 F.2d at 593;
and Buck, 658 F.2d at 871. It was against this backdrop, in
Page 33 - OPINION AND ORDER
1978, that Congress passed FISA, permitting the government to
obtain an electronic surveillance order based upon probable cause
that the prospective target was a "foreign power" or an "agent of
a foreign power." Pub. L. No. 95-511, § 101, 92 Stat. 1783
(1978).
The decisions in Katz and Keith drew a line between
surveillance conducted by law enforcement officials to
investigate crime - which requires a traditional warrant based on
probable cause - and surveillance conducted by intelligence
officials to obtain foreign intelligence information. Notably,
the primary purpose of the electronic surveillance and physical
searching of Mayfield's home was to gather evidence to prosecute
him for crimes. Mayfield was ultimately arrested to compel his
testimony before a Grand Jury investigating his alleged
involvement in the crimes of bombing places of public use,
providing national support to terrorists and conspiracy to kill,
kidnap, maim or injure persons or damage property in a foreign
county. In Re: Federal Grand Jury 03-01 Matter of Material
Witness, No. 04-MC-9071 (D. Or. 2004). The government stipulated
that it did not demonstrate to the FISC that its primary purpose
in wiretapping, electronically eavesdropping, or physically
searching Mayfield's home or law office was to gather foreign
intelligence. "In the FISA applications, the government did not
seek to establish, and under the terms of FISA was not required
Page 34 - OPINION AND ORDER
to establish, all of the requirements set forth in 18 U.S.C. §
2510 et seq. and Rule 41, Fed. R. Crim. P." Recitation of
Stipulated Facts ("Stip."), ¶ a. Thus, FISA now permits the
Executive Branch to conduct surveillance and searches of
American citizens without satisfying the probable cause
requirements of the Fourth Amendment.8 As plaintiffs allege,
when proceeding pursuant to FISA, "there is no [need for] showing
or finding that a crime has been or is being committed, as in the
case of a search or seizure for law enforcement purposes."
Plaintiffs' Memo in Support of Summary Judgment, p. 26.
"Additionally, and with respect to the nexus to criminality
required by the definitions of an 'agent of a foreign power,' the
government need not show probable cause as to each and every
element of the crime involved or about to be involved." Id.
When the FISC reviews a FISA search application, the government
satisfies most FISA requirements simply by certifying that the
requirements are met. 50 U.S.C. § 1804(a)(7). The statute
directs that the FISC is not to scrutinize such statements, but
is to defer to the government's certification unless it is
____________________________________________
8 Members of Congress expressed reservations about the
constitutionality of the "significant purpose" amendment to FISA
in light of the "primary purpose" requirement rooted in the
Fourth Amendment. 147 Cong. Rec. S10593 (Oct. 11, 2001)(Sen.
Leahy); id. at S10568 (Sen. Specter); id. at S10585 (Sen.
Cantwell); id. at S10597 (Sen. Kennedy); id. at E1896 (Oct. 12,
2001)(Rep. Mink); id. at H6760 (Rep. Scott); id. at H6761 (Rep.
Lofgren); id. at H6767 (Rep. Conyers); id. at H6772 (Rep. Udall).
Page 35 - OPINION AND ORDER
"clearly erroneous." Id. at § 1805(a)(5); § 1824(a).
This procedure allows the government to avoid traditional
Fourth Amendment judicial oversight used to obtain a surveillance
order. The government must provide the court with "a full and
complete statement of the facts and circumstances relied upon by
the applicant to justify his belief that an order should be
issued." 18 U.S.C. § 2518(1)(b). The court may "require the
applicant to furnish additional testimony or documentary evidence
in support of the application." Id. at § 2518(2). Finally, as
to most substantive requirements, the court must find probable
cause to believe they are satisfied. Id. at § 2518(3).
The FISA also allows the government to retain information
collected, and use the collected information in criminal
prosecutions without providing any meaningful opportunity for the
target of the surveillance to challenge its legality. Nor does
FISA require notice. The Fourth Amendment ordinarily requires
that the subject of a search be notified that the search has
occurred. Although in some circumstances the government is
permitted to delay the provision of notice, the Supreme Court has
never upheld a statute that, like FISA, authorizes the government
to search a person's home or intercept his communications without
ever informing the person that his or her privacy has been
violated. Except for the investigations that result in criminal
prosecutions, FISA targets never learn that their homes or
Page 36 - OPINION AND ORDER
offices have been searched or that their communications have been
intercepted. Therefore, most FISA targets have no way of
challenging the legality of the surveillance or obtaining any
remedy for violations of their constitutional rights.
FISA also does not require particularity. The Fourth
Amendment prohibits the government from conducting intrusive
surveillance unless it first obtains a warrant describing with
particularity the things to be seized as well as the place to be
searched. Berger, 388 U.S. at 58 (Fourth Amendment particularity
requirement intended to prevent government's reliance on "general
warrants" that allow "seizure of one thing under a warrant
describing another"). The Supreme Court has underscored the
importance of the particularity requirement:
By its very nature eavesdropping involves an intrusion
on privacy that is broad in scope . . . . [T]he
indiscriminate use of such devices in law enforcement
raises grave constitutional questions under the Fourth
and Fifth Amendments, and imposes a heavier responsibility
on this Court in its supervision of the fairness of
procedures.
Id. at 56, 63 (internal quotation marks and citations omitted).
Finally, FISA authorizes surveillance terms up to 120-days.
50 U.S.C. § 1805(e)(1)(B). Title III limits the term of
surveillance to 30 days. 18 U.S.C. § 2518(5). The Ninth Circuit
has held that in the context of criminal investigations, the 30day
limitation is constitutionally required. United States v.
Koyomejian, 970 F.2d 536, 542 (9th Cir.), cert. denied, 506 U.S.
Page 37 - OPINION AND ORDER
1005 (1992). Given Berger and Koyomejian, FISA's provisions
relating to the duration of surveillance orders violates the
Fourth Amendment requirements for criminal investigations.
The government does not refute plaintiffs' historical
recitation of law leading up to the enactment of FISA.
Similarly, the parties agree that when surveying the case law
prior to In re Sealed Case, 310 F.3d 717 (FISA Ct. of Rev. 2003),
every Article III court that had considered the issue directly
concluded that to justify non-probable cause searches and
electronic surveillance, the government's purpose, or at least
its primary purpose, must have been the collection of foreign
intelligence. Specifically, as originally drafted and
implemented over its 24-year history, FISA applications were
properly granted only when "the purpose" of the surveillance was
foreign intelligence gathering.
In the history underlying In re Sealed Case, the government
sought to conduct surveillance of an "agent of a foreign power."
In granting the request, the FISC also addressed the new 2002
FISA Procedures. On May 17, 2002, the seven judges of the FISC
issued a rare public and unanimous opinion ruling the Procedures
improper. The FISC court held:
[The 2002 Procedures] are designed to enhance the
acquisition, retention, and dissemination of
evidence for law enforcement purposes, instead of
being consistent with the need of the United States
to 'obtain, produce, and disseminate foreign
intelligence information[.] The 2002 Procedures
Page 38 - OPINION AND ORDER
appear to be designed to amend the law and substitute
the FISA for Title III electronic surveillances and
Rule 41 searches.
In re All Matters Submitted To The Foreign Intelligence
Surveillance Court, 218 F.Supp.2d 611, 623 (FISC 2002) (In re
FISC)(emphasis in original).
The government filed the first ever appeal to the FISCR, a
court that had never before met. The FISCR reversed the FISC's
ruling and held the 2002 Procedures consistent with the Patriot
Act, found the 2002 Procedures constitutionally reasonable, and
held that they met Fourth Amendment standards. While the court
permitted amicus briefs, only the government was allowed to
appear and participate at oral argument. Moreover, only the
government is allowed under FISA to seek Supreme Court review of
a FISCR decision, which it declined to do. Even without the
benefit of full adversarial proceedings, the FISCR conceded that
"the constitutional question presented by this case - whether
Congress' disapproval of the primary purpose test is consistent
with the Fourth Amendment - has no definitive jurisprudential
answer." In re Sealed Case, 310 F.3d at 743.
The government cites In re Sealed Case as "highly
persuasive" authority for this court and suggests that the Ninth
Circuit would adopt the ruling.9 The government cites both
____________________________________________
9 The government recently provided the court with a copy of
United States v. Holy Land Found. for Relief and Dev., 2007 WL
2011319 (N.D. Tex. July 11, 2007), in which the court decided a
Page 39 - OPINION AND ORDER
United States v. Cavanagh, 807 F.2d 787 (9th Cir. 1987), and
United States v. Sarkissian, 841 F.2d 959 (9th Cir. 1988), as
evidence that the Ninth Circuit would follow the ruling of In re
Sealed Case. Both Ninth Circuit cases were decided prior to the
Patriot Act's amendments to FISA. Regardless, I disagree with
the government's analysis and find those cases are not persuasive
as to whether the Ninth Circuit would adopt the reasoning of In
re Sealed Case. For example, in Cavanagh the court held that
where "the purpose of the surveillance is to obtain foreign
intelligence," FISA passes constitutional muster. Id. at 790-91.
In Sarkissian, the Ninth Circuit expressly declined to consider
whether the primary purpose test was constitutionally required.
871 F.2d at 964 ("We also decline to decide the issue. We have
generally stated that the purpose of the surveillance must be to
secure foreign intelligence information.").
In this case, the court declines to adopt the analysis and
conclusion reached by the FISCR in In re Sealed Case. Notably,
the FISCR's two fundamental premises underlying its ruling are
contradictory. FISCR determined both that FISA never contained a
motion to compel production of documents related to the
government's applications under FISA and a motion to suppress
evidence obtained from that surveillance. The court denied the
motions rejecting defendants' Fourth Amendment challenge, and
relied on the "thorough analy[sis]" by the FISCR in In re Sealed
Case. I find this case simply reiterates the analysis of In re
Sealed Case, and therefore does not aid in the resolution of this
difficult issue.
Page 40 - OPINION AND ORDER
purpose requirement, and that in altering the purpose
requirement, Congress did not undermine the validity of searches
conducted pursuant to FISA. Regarding FISCR's second premise,
FISCR found that the primary purpose test "generates dangerous
confusion and creates perverse organizational incentives arising
from the purported need to distinguish between intelligence
gathering and criminal investigation." Id. at 743. However, a
provision of the Patriot Act, unchallenged by plaintiffs here,
eliminates the DOJ "wall" and with it the "dangerous
confusion"
and "perverse organizational incentives" referred to and relied
on by the FISCR. Moreover, to the extent the "primary purpose"
test imposes any restraint on the sharing of FISA surveillance
with criminal investigators, investigators are, of course, free
to seek orders authorizing surveillance under Title III, and
traditional search warrants that satisfy Fourth Amendment
requirements. Finally, Title III includes predicate offenses for
which surveillance is justified for virtually all terrorism and
espionage-related offenses. 18 U.S.C. § 2516(1). As such, Title
III provides a satisfactory alternative when criminal
investigators cannot have access to FISA surveillance.
The FISCR also attempts, without merit, to distinguish the
Supreme Court's "special needs" cases. In re Sealed Case, 310
F.3d at 745-46 n. 33. "Special needs" cases are those where the
Supreme Court has found it appropriate to carve out an exception
Page 41 - OPINION AND ORDER
to the Fourth Amendment's requirement of probable cause based
upon an individualized suspicion of wrongdoing. In these cases,
the Court found that special needs, beyond the normal need of law
enforcement, might justify an otherwise unconstitutional search.
Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 619
(1989). Prior to the Patriot Act, FISA may have had as its
"general programmatic purpose . . . to protect the nation against
terrorism and espionage threats directed by foreign powers." In
re Sealed Case, 310 F.3d at 46. After the Patriot Act, however,
FISA surveillance, including the surveillance at bar, may have as
its "programmatic purpose" the generation of evidence for law
enforcement purposes - which is forbidden without criminal
probable cause and a warrant.
Finally and perhaps most significantly, In re Sealed Case
ignores congressional concern with the appropriate balance
between intelligence gathering and criminal law enforcement. It
is notable that our Founding Fathers anticipated this very
conflict as evidenced by the discussion in the Federalist Papers.
Their concern regarding unrestrained government resulted in the
separation of powers, checks and balances, and ultimately, the
Bill of Rights. Where these important objectives merge, it is
critical that we, as a democratic Nation, pay close attention to
traditional Fourth Amendment principles. The Fourth Amendment
has served this Nation well for 220 years, through many other
Page 42 - OPINION AND ORDER
perils. Title III, like the Supreme Court's pronouncements in
Katz and Berger, recognizes that wiretaps are searches requiring
fidelity to the Fourth Amendment.
Moreover, the constitutionally required interplay between
Executive action, Judicial decision, and Congressional enactment,
has been eliminated by the FISA amendments. Prior to the
amendments, the three branches of government operated with
thoughtful and deliberate checks and balances - a principle upon
which our Nation was founded. These constitutional checks and
balances effectively curtail overzealous executive, legislative,
or judicial activity regardless of the catalyst for
overzealousness. The Constitution contains bedrock principles
that the framers believed essential. Those principles should not
be easily altered by the expediencies of the moment.
Despite this, the FISCR holds that the Constitution need not
control the conduct of criminal surveillance in the United
States. In place of the Fourth Amendment, the people are
expected to defer to the Executive Branch and its representation
that it will authorize such surveillance only when appropriate.
The defendant here is asking this court to, in essence, amend the
Bill of Rights, by giving it an interpretation that would deprive
it of any real meaning. This court declines to do so.
For over 200 years, this Nation has adhered to the rule of
law - with unparalleled success. A shift to a Nation based on
Page 43 - OPINION AND ORDER
extra-constitutional authority is prohibited, as well as ill-
advised. In this regard, the Supreme Court has cautioned:
The price of lawful public dissent must not be a
dread of subjection to an unchecked surveillance
power. Nor must the fear of unauthorized official
eavesdropping deter vigorous citizen dissent and
discussion of Government action in private conversation.
For private dissent, no less than open public
discourse, is essential to our free society.
Keith, 407 U.S. at 314.
Therefore, I conclude that 50 U.S.C. §§ 1804 and 1823, as
amended by the Patriot Act, are unconstitutional because they
violate the Fourth Amendment of the United States Constitution.
Plaintiffs' Amended Complaint for declaratory relief is granted.
CONCLUSION
Based on the foregoing, plaintiffs' motion for summary
judgment (doc. 126) is granted. Defendant's motion to dismiss
the Amended Complaint (doc. 134) or cross-motion for summary
judgment (doc. 134) is denied. The parties have until November
1, 2007, to submit a stipulation regarding costs, or file briefs
regarding this issue.
IT IS SO ORDERED.
Dated this 26 day of September, 2007.
/s/ Ann Aiken
Ann Aiken
United States District Judge
Page 44 - OPINION AND ORDER
source: U.S. District Court-Oregon (119 kb PDF) 29sep2007
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