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Supremes Deny Cert on FISA Search Case

The Supreme Court has declined to hear a case challenging the constitutionality of searches and seizures performed under the Foreign Intelligence Surveillance Act (FISA).  The case emerged out of the 2004 Madrid train bombings, after a latent fingerprint erroneously led FBI investigators to a Muslim American citizen in Orgeon, Brandon Mayfield.  Relying on authority from FISA—as amended by the 2001 USA PATRIOT Act—FBI investigators conducted wiretaps and “sneak and peak” searches of Mr. Mayfield’s home, all without the requisite probable cause for ordinary investigations required by the Fourth Amendment.  When no additional incriminating evidence was obtained, the FBI detained Mr. Mayfield as a material witness for two weeks,the released him without charges.

Mr. Mayfield filed suit, charging that the searches and seizures were unconstitutional, violating the Fourth Amendment’s requirement of probable cause, and challenged the USA PATRIOT Act’s amended requirement that the “significant purpose” of a FISA search be to target foreign intelligence, rather than the higher bar of “primary purpose.”  The suit was settled, however, with Mr. Mayfield accepting $2 million to release the government of liability, but reserving the right to challenge the Fourth Amendment constitutionality of two FISA sections, 50 U.S.C. §§ 1804 and 1823, which authorized searches and wiretaps without probable cause.  However, the settlement stipulated that Mr. Mayfield could only seek declaratory judgment.  The District Court ruled in favor or Mr. Mayfield, declaring both sections unconstitutional.

On appeal, the Ninth Circuit vacated the District Court’s decision, holding that Mr. Mayfield lacked standing to challenge on the Fourth Amendment.  Mr. Mayfield had claimed that he suffered a continuing 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 as well as other future applications of FISA against him and his family.”  Mayfield v. U.S., 599 F.3d 964, 968 (9th Cir., March, 2010).  The Circuit Court agreed that Mr. Mayfield suffers an actual, ongoing injury, but ruled that he a declaratory judgment would not redress that injury.  Id. at 970.  The District Court’s standing decision was therefore reversed, and the decision on constitutionality vacated, declining to rule on the constitutionality of the two FISA provisions.

The decision by the Supreme Court not to hear the case will likely upset many opposed to the expanded surveillance powers contained in the USA PATRIOT Act-amended FISA.  Particularly frustrating is the fact that the government’s standing argument rested on the assertion that a declaratory judgment that the FISA provisions violate the Fourth Amendment would not necessarily require the government to abandon the surveillance materials that it had obtained illegally.  The case highlights the difficulty an individual faces when seeking redress in a courts for PATRIOT Act searches, and leaves open the question of how an individual may challenge what may be unconstitutional activities by the government.

See also:

Mayfield v. United States, 504 F.Supp.2d 1023 (D.Or. 2007) (District Court Decision).

Mayfield v. U.S., 599 F.3d 964 (9th Cir. 2010) (Court of Appeals decision).

18 U.S.C. § 1804 (authorizing electronic surveillance under FISA).

18 U.S.C. § 1823 (authorizing physical searches under FISA).


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