To pick only the most obvious example: Brandon Mayfield [PDF warning].
Other examples include (from the ACLU):
There is more, one need only look.
One other difficulty is that the government has been stonewalling any and all attempts to discover what they have been doing in the way of information gathering. National security, you know.
The problem in Mr. Mayfield’s case arose from the misidentification of a fingerprint as his. The FBI screwed up on that, yes. But that’s not a Patriot Act problem. The broad search and arrest warrants that caused Mayfield’s imprisonment for two weeks came from that false fingerprint match, in which Mayfield’s print was wrongly matched to a scrap of paper retrieved from the March 11 Madrid train bombing. Even if the Patriot Act had never existed, the sequence of events that led to Mayfield’s arrest would have happened. The fingerprint match was enough probable cause to obtain a search warrant.
In fact, because Mayfield protested that the match must be a mistake, a second comparison of the prints was done, this time by an expert selected by Mayfield’s own defense team. That expert ALSO concluded that Mayfield’s print matched the one from the bombing site. It was only after that second expert weighed in that Mr. Mayfield was arrested… and all of this without one entrance of the dreaded Patriot Act.
Not to say that there wasn’t a Patriot Act issue in this case. There was, and it’s an issue is still not settled.
After the first (ultimately false) match of Mayfield’s print, the FBI sought and received a FISA warrant to search and bug Mayfield’s home. None of the evidence from this search or surveillance implicated Mayfield, and none of it was used as the basis of the additional, ordinary criminal court search and arrest warrant which was used to search and arrest him.
After Spanish authorities matched the “Mayfield” print to an Algerian man, the FBI immediately released Mayfield. They apologized and acknowledged their error. Mayfield asked for and received a US District Court’s summary judgement finding that the portion of the Act which permitted the government to use the FISA process to develop a criminal case was unconstitutional… but, in fact, they ultimately did not use the FISA search results to support their criminal case.
The only thing that the was done under the Patriot Act was a covert search and bugging of Mayfield’s house… things that were perfectly supported by the evidence and could have been easily authorized by the same fingerprint matching evidence in the ordinary criminal context.
So please – explain to me how this case is an example of horrible evils done under the aegis of the Patriot Act. What, specifically, happened to Mayfield that the Patriot Act was responsible for?
You concede that the FBI bugged his house without having to show probable cause as required by the Fourth Amendment. That is an abuse, in my book. There was a lot the FBI could and should have done before bugging his house that would equally protect us from terrorism.
But let’s clear up some other things, and show you why I think this case is much worse than that.
You argue that this isn’t about the Patriot Act because this was all approved by a normal court under normal standards of PC. That is misleading. What was being challenged (according to the court) was “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.” So let’s not confuse what was being challenged here. It wasn’t the normal criminal court’s orders, or the FBI’s power under normal law. It was the FBI’s use of the Patriot Act amendments to violate Mayfield’s privacy without criminal probable cause presented to a neutral magistrate.
Indeed, many of things the FBI did could not have been authorized without the Patriot Act, even if they had normal criminal probable cause: sneak and peak searches that terrorized Mayfield’s family because they thought they had been burglarized (since they received no notice before or after); the retention, use, and wide dispersal of information collected, without providing any meaningful opportunity for the target of the surveillance to challenge its legality; roving surveillance, etc. So the Patriot Act gave the mistaken FBI far greater power for mischief than they otherwise would have had.
Now, you claim that this was all justified by normal PC in federal court. The FBI got the warrant in federal court AFTER the Spanish announced they had the Moroccan suspects, and that Mayfield’s prints did not match. They submitted affidavits in which they swore they were 100% confident of a match. The Patriot Act allowed the FBI to pursue this case to the point where they now had a vested interest in justifying the use of all these resources. So they lied to the court in order to get PC.
But remember, even if you buy that affidavit of 100% certainty, the covert searches, bugging, and eavesdropping were not a result of criminal probable cause before a normal court. The FBI did not need probable cause that Mayfield had committed a crime or that the search would find information about a crime when they went to FISC. That’s the whole point. Such PC isn’t the requirement under the Patriot Act amendments to FISA. The requirement is just PC that he is “an agent of a foreign power.” This, in turn, simply requires the government’s say-so. Their certification must be clearly erroneous in order for the secret court to reject it. In this case, it was the word of John Ashcroft (given without the information about the FBI’s many reasons for doubt–“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.”). That they eventually went to normal federal court does nothing to dispel the fact that they could and did (for a time) do all of this without having been reviewed by a court under normal Constitutional standards.
Finally, keep in mind that the fingerprint analysis was not just a mistake, it was a mistaken policy. They first gathered Mayfield’s demographic information, including his muslim religion. Then, when they got *partial *matches, instead of having proper independent analysis, they let the supervisors know that they suspected Mayfield, and that we was a muslim. These allegations about FBI procedure were undisputed. The reason so many fingerprint analysts were able to get it wrong was that they were given bias-inducing information at every level, and never given the complete picture.
As the court stated: “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 assertion that it also has a significant interest in the targeted person for foreign intelligence purposes.” That is what is wrong with the Patriot Act, and that was proved by the abuse in this case. Under the normal Constitutional model, there would have been several points at which the whole nonsense could have ended before it even got to federal court. But under the Patriot Act, it was secret courts, government say-so, secret searches, and plenty of opportunity to conceal government fuck-ups.
Parker, you ever try and quit the Boards I will hunt you down and drag you back.
http://www.fd.org/Publications/SpecTop/fingerprintlawreview.pdf
This is a long paper showing that fingerprint identification is not science. It meets no standards and should be thoroughly and publically tested. TV has perpetuated the myth of fingerprint ID ing and it is not a science. It compares with hand writing analysis as a real science.
The reason they got it wrong is because it is fundamentally opinion.
From the Court’s decision in Mayfield:
*The defendant here [the US] 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 extra-constitutional authority is prohibited, as well as illadvised.
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.*
Nope, no issues of any real importance at stake here at all. And I’m sure Mayfield was an isolated instance out of 10s of thousands… :rolleyes:
Let’s dispense with one thing up front: the mismatched fingerprint had nothing to do with the Patriot Act. Agreed? The FBI didn’t need or require any aspect of the Patriot Act to make that blunder.
Yes, they bugged his house without having to show probable cause… but they DID HAVE PROBABLE CAUSE. The fingerprint gave them probable cause. My point, made again in the hope that you will address it directly, is just that. Even if the Patriot Act did not exist, they could have perfectly legally bugged his house.
Sure, that is what’s being challenged. And I am pointing out that, in this particular case, the government could have relied upon a normal court and the normal standards of PC. Where an adequate alternative ground exists for a ruling, a reviewing court will uphold a verdict, even if the lower court’s reasoning was error.
Right?
That’s not true. Sneak-and-peek searches, and wiretapping, are perfectly possible in normal criminal investigation.
Specifically, what information was retained, used, and dispersed in a way that would not be possible with an ordinary wiretap and search warrant procured under ordinary criminal process? And how could an ordinary target in an ordinary criminal investigation challenge the legality of wiretaps he knew nothing about?
Again: cite? Ordinary criminals are subject to roving surveillance all the time, without benefit of the Patriot Act.
No, you haven’t remotely demonstrated this. Tell me specifically: what actions were taken that could not be done under a criminal context.
Yes, they did.
And that’s where the process broke down. But it has nothing to do with the Patriot Act. Those are precisely the affadavits that would be submitted in normal criminal context, the same kind that judges rely upon every day in issuing warrants. That they were the products of lies, mistake, or zealousness is not remotely changed by the Patriot Act.
No. As I say above, the fingerprint match came first. That gave them the PC they needed, and the wherewithal to continue. The error in matching the fingerprint was not a creation of the Patriot Act.
Who cares?? They HAD PROBABLE CAUSE. With that, they can get authorization to do covert searches, bugging, and eavesdropping. How many Mafia bosses have been brought down by wiretaps on their phones and in their businesses? Do you think the Patriot Act was required to get those? Of course not!
If your argument is simply, “It’s bad to let the government have this power,” then make that argument without dragging Mayfield into it. Because the government would have had this power with respect to Mayfield with or without the Patriot Act. IN THIS CASE, THE PATRIOT ACT ADDED ESSENTIALLY NOTHING TO THE GOVERNMENT’S ARSENAL. The only thing they needed was what they had: a fingerprint match.
OK - all true, arguendo. Still the problem remains: not a whiff of “Patriot Act” in the above. Without the Patriot Act, the FBI STILL can gather Mayfield’s demographic information, including his Muslim religion, STILL refer partial fingerprint matches to a supervisor with their suspicions and the fact that he was a Muslim. NOTHING CHANGES.
Yes! True! Exactly right!!
That is exactly the problem.
It has fuck-all to do with the Patriot Act, though.
You may as well point out the FBI’s shameful treatment of Richard Jewell as evidence of Patriot Act problems. Same type of confirmation bias as happened to Mayfield. Terrible ordeal for an innocent man. Just nothing to do with the Patriot Act.
Just as with the military authorization, it would not be pernicious if it were not delivered into the wrong hands. Which it has been. A .38 pistol may be exactingly manufactured, correct by every standard, and a spendid example of metallurgics and engineering.
Except in the hands of your crazy Uncle Ernie.
And if the Patriot Act is so gosh-darn wonderful, why does it need to be dressed up in bunting and draped with Old Glory? Why does it need to be rolled out as a product line? Am I overly pessimistic to presume that they could not have sold it otherwise? 9/11 didn’t change everything, but it sure as hell changed us.
The Patriot Act is a symbol of the culture of fear that has been pushed on us, it is that culture that needs repudiation, and repudiating a symbol of that creeping authoritarianism may not have any huge legal impact. But the law of it is not so important has what it says about us, what we have become, what we are *willing * to become.
Ignoratio Elenchi, an Irrelevant Conclusion argument. Argue against the specifics of the Patriot Act that you object to. Your statement here invites us to infer it’s insidious because of the way it’s marketed, when many different reasons could exist for the marketing. Perhaps the proponents suspect the public cannot or will not pay attention to detailed policy arguments, even if those policy arguments are correct.
OK, there’s actually a wisp of an argument in there, but I’m going to decline to address it, although I will reframe it a touch more directly: repeal of the Patriot Act is valuable for symbolic reasons, as a repudiation of the administration and its proponents’ policies if not for any grave legal changes. I think that’s a valid argument, but it’s not the one I came here to rebut.
In the Omar al-Hussayen case, the defense was not given documents from the government surveillance (emails and thousands of intercepted phone calls) until three days before the trial. The Justice Department withheld evidence because of dubious national security claims. Al-Hussayen was acquitted of all charges.
Under the Patriot act, the FBI was freed from judicial oversight and given the power to use warrantless seizure. The FBI could seize banking, Internet, phone, and credit card records. The FBI used warrantless seizure eighty-five hundred times in 2000 and forty-five thousand times the year after the Patriot Act was passed by Congress. A review by the JOD inspector general found FBI misuse and illegal use of the investigative tools permitted under the Patriot Act. It is routine for the FBI to share information with local law enforcement and prosecutors without disclosing how the information was obtained.
http://www.usdoj.gov/oig/special/s0703b/final.pdf
I tried, unsuccessfully, to copy specifics from the pdf document. - Anyone interested, pp 60 of the actual report is a good place to start.
Bricker, I agree that the fingerprint mismatch itself had nothing to do with the Patriot Act, I just believe that the Act enabled that folly to have much wider consequences than without it.
I see you making two main assertions (please correct me if I summarize them inaccurately):
- Everything the FBI did, they could have done without the Patriot Act so long as they had criminal—i.e. Fourth Amendment–probable cause.
- They did in fact have this probable cause. (This is what you say, but I think what you mean is “they could have fraudulently convinced a neutral magistrate that they had PC at the point at which they went to FISC.” That’s assuming you don’t think that improperly analyzed fingerprints are, objectively, sufficient for PC. I agree with this argument as I stated it, but let me know if you meant to argue that they did in fact have PC.)
Let’s first take note of two things: first, whether or not they had to, the actions of the FBI did in fact violate the 4th Amendment. Therefore they violated Mayfield’s rights by using the Patriot Act. This is true regardless of whether there were non-Patriot Act means available to abuse him; and second, your argument is functionally that the FBI is free to abuse people’s rights all they want under the current system, and they have been shown here to have done so. If that’s the case, I think that’s a powerful argument against giving them more power, even if as you say they didn’t use such power in this case. In winning this battle with such an argument, I think you lose the war.
But I will still address your first main assertion. Humbly, as a mere law student talking to someone who has real-world legal experience, I don’t think it’s true that they could have done what they did without the Patriot Act. I concede that they could have done some of it, even much of it, but not all of it and not the most egregious aspects.
Here’s a list of what they did: “Place[d] electronic listening devices (‘bugs’) in the ‘shared and intimate’ rooms of the Mayfield family home;. . . [secretly] executed repeated ‘sneak and peek’ searches of the Mayfield family home, occurring when the family was away from the home; . . . executed ‘sneak and peek’ searches of the law office of Brandon Mayfield;. . .obtained private and protected information about the Mayfields from third parties [banks, etc.]; . . . Placed wiretaps on Mayfield’s office and home phones; [retained] materials derived from those searches, eavesdropping, and wiretapping [identified on pg. 23 of the opinion, in answer to your question].”
The court in Mayfield stated, and the government stipulated, that none of the actions I listed above could have been conducted under FISA as unmodified by Patriot Act. This is because the purpose of these actions was criminal investigation, as all sides concede. So the remaining question is whether the FBI’s powers under Title III and normal criminal search procedure are sufficient to have taken these actions. Allow me to separate their actions into three categories:
Surveillance
All non-Patriot Act surveillance, including Title III surveillance, requires (1) particularity (who, what conversations, etc.), (2) proportionality (proof that the information is not available through normal investigation), (3) thirty days duration (constitutionally required, according to Ninth Circuit), and (4) eventual notice. The procedures used here lacked all four factors. One, three and four were just factually absent, and I think they’d have a really tough time establishing two, at least with regard to all every act of surveillance.
Sneak-and-Peak
Sneak-and-peak is available in the criminal context on case-by-case basis as justified by extraordinary needs and is quite rare. Since there is no statute or objective standard, we can agree to disagree here, but I wager that no judge would have authorized the extent of the sneak-and-peak searches used here under normal criminal standards. In any case, a normal sneak-and-peak search could not have seized irrelevant client litigation information, etc., because they still would have been subject to requirements of particularity. The broad vacuum cleaner searches they used cannot be justified without the Patriot Act. And, of course, criminal sneak-and-peak warrants still require delayed notice eventually.
Financial and other records
In the normal criminal process, getting all of these private records from third parties (banks, libraries, etc.) requires, among other things, notice. And they are much more difficult to get—PC alone is not enough in most cases. Also, under a normal criminal process, this information couldn’t have been shared with all of the intelligence agencies (compounding the privacy violation and subjecting Mayfield to the risk of yet more government idiocy) pre-Patriot Act.
So, with due respect, I don’t think it is accurate that they could have done what they did without recourse to the Patriot Act.
P.S. I’ve just spent entirely too long typing out this post, so my apologies if I don’t make it back to this thread for a while.
So reading this thread, something just jumped out at me - Bricker’s premise, if I understand correctly, is that a “normal” (i.e. not related to the Patriot Act) search would have been upheld in the case of Mayfield; that the FBI had just cause to search due to the erroneous finger print match and didn’t need the special permissions granted in the Patriot Act.
So why didn’t the FBI just get execute a normal search warrant? They have the power to get a search warrant without advertising their intent; they can search a propoerty or leave listening devices, legally, without alerting the subject - they do it all the time. Why didn’t they just take it to a judge as they could with any other criminal investigation if their cause was just?
Because to me that’s the point. If the FBI had enough just cause under normal laws to get a search warrant, then the Patriot Act is worthless in law enforcement and little better that window dressing to make us feel safer; if the FBI didn’t have enough evidence for a normal warrant for search, then the Patriot Act has changed the evidentiary rulings required for criminal or intelligence investigations, and therefore has negatively impacted on individual civil rights in the US.
You may be right. But a better way to phrase it is "I don’t think the FBI would have done it without 9/11 . (ahh…are you rolling your eyes at me?..read on)
The FBI’s job is to watch suspicious people.The Patriot Act is designed to make their job easier.And that is what scares a lot of Americans…especially the ones who roll their eyes every time somebody mentions 9/11.The ones who don’t roll their eyes are not as scared.
All weapons, and all laws can be abused. (Remember Rodney King?)The important* issue is not whether they can be abused, but how often they are abused, and whether Joe Average Citizen feels threatened.
The OP asks why all the frontrunners support the Patriot Act, and the answer is that the majority of voters do not feel personally threatened by it. So far the number of people who have had their lives ruined by the Patriot Act is miniscule, far fewer than the number of people who have had their lives ruined by terror.
.
*when I say ‘important’, I mean important as a practical matter.That is–not as a philosophic game of conjecture about what might happen in the future, but as a practical, realistic issue about what motivates voters and politicans who cater to them.
There you go! Personally, I think it is a fine system for a court to determine whether or not probable cause exists, rather than the person desiring to search making that decision. Apparently, Bricker disagrees.
He’ll change his mind between November and January, I suspect.
-Joe
If something is designed to make abusive use of it easier, whether it be a law or a gun, and there is a perfectly suitable law or gun already in place, then I would argue the more easily abused version shouldn’t be allowed.
The 9-11 commision findings about ‘gaps in intelligence’ were between different agencies, not within individual agencies. The policies and the procedures of the FBI and CIA were not at fault; the communications between the FBI and the CIA were.
The Patriot Act is uneccesary for either intelligence gathering or law enforcement, and would not have helped prevent the 9-11 attacks if it was in place at the time. It makes law enforcement abuse of civil rights easier by both the Federal and State and Local governments. And the real issue, the ‘walls’ between the intelligence agencies and issues of command and control between FBI, CIA, NSA, etc… has not been changed. This is classic misdirection, and a classic governmental power grab, and is accomplishing absolutely NONE of it’s objectives, because Americans are certainly not safer with this law in place.