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….