Stephen Aftergood reports on the Federation of American Scientists’ Secrecy News that a hearing has been scheduled for February 9 on the goverment’s appeal of District Court Judge Ann Aiken’s September 2007 ruling that declared FISA unconstitutional:
That ruling came in response to a challenge by Brandon Mayfield, who was erroneously arrested in connection with the Madrid bombings in 2004 based on a false fingerprint match and subsequent surveillance under the Foreign Intelligence Surveillance Act. The FBI later apologized for his mistaken arrest and provided a financial settlement. But Mayfield continued to challenge the legal foundation of the arrest.
He successfully argued that FISA, as modified by the PATRIOT Act, violates the Fourth Amendment because it eroded the requirement of probable cause as a pre-condition for obtaining a search warrant, and because it permitted warrants to be issued under FISA without a showing that the “primary purpose” of the search is to obtain foreign intelligence information (as summarized by Judge Vaughn Walker in a July 2008 opinion [pdf], at pp. 39-41).
The suit involves two American lawyers accidentally given a Top Secret document showing they were eavesdropped on by the government when working for a now-defunct Islamic charity in 2004. Their suit looked all but dead in July when they were initially blocked from using that document to prove they were spied on….
U.S. District Judge Vaughn Walker said the lawyers’ amended lawsuit, even absent the classified document, showed there was enough evidence for the case to continue. The amended lawsuit pieces together snippets of public statements from government investigations into Al-Haramain, the Islamic charity the lawyers were working for and, among other things, a speech about their case by an FBI official….
The case concerns lawyers Wendell Belew and Asim Ghafoor, whose case appears now the most likely to lead to a ruling on the legality of Bush’s warrantless-wiretapping program.
Julian Sanchez has more on Ars Technica, including
At times, a note of irritation crept into Walker’s even, judicial language. At one point, he described the government’s argument as “without merit,” and characterized another as “circular.” He also seemed impatient with the Justice Department’s refusal to provide any classified documents addressing Al Haramain’s specific claims for review in chambers. “It appears… that defendants believe they can prevent the court from taking any action under 1806(f) by simply declining to act,” wrote Walker.
They will have to act now.
Indeed. Looks like there’ll be some smiling faces at EFF’s 18th birthday party tomorrow night.
PS: Get FISA Right, repeal the PATRIOT Act, and restore our civil liberties is currently #3 in change.org’s Ideas for Change in America competition. Please vote for it if you haven’t already!