Another blow to the Patriot Act

PORTLAND — A federal judge has struck down two provisions of the USA Patriot Act, ruling they are unconstitutional because they allow search warrants to be issued without showing probable cause.

U.S. District Court Judge Ann Aiken ruled the Foreign Intelligence Surveillance Act (FISA), as amended by the Patriot Act, wrongly allowed the executive branch to conduct surveillance in violation of the Fourth Amendment.

"For over 200 years, this nation has adhered to the rule of law — with unparalleled success," Aiken wrote in her opinion. "A shift to a nation based on extra-constitutional authority is prohibited, as well as ill-advised."

The ruling in Oregon follows a separate finding Sept. 6 by a federal judge in New York, who struck down provisions allowing the FBI to obtain e-mail and telephone data from companies without a court-issued warrant.

The decision also comes amid renewed congressional debate over the government's broad powers to conduct searches and surveillance in counterterrorism cases.

Justice Department spokesman Brian Roehrkasse said Wednesday night that the administration "will consider all our options" in responding to the ruling.

The Oregon ruling resulted from a lawsuit filed by Portland attorney Brandon Mayfield, who was mistakenly linked by the FBI to the Madrid, Spain, train bombings that killed 191 people in 2004.

The federal government apologized and settled part of the lawsuit for $2 million after admitting a fingerprint was misread. As part of the settlement, Mayfield retained the right to challenge parts of the Patriot Act, which greatly expanded the authority of law enforcers to investigate suspected acts of terrorism.

Mayfield claimed that secret searches of his house and office under FISA violated the Fourth Amendment's guarantee against unreasonable search and seizure. Aiken agreed.

The U.S. Attorney General's Office sought to have the lawsuit dismissed. But Aiken ruled against the Justice Department lawyers, saying they were "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."

Elden Rosenthal, an attorney for Mayfield, praised the judge, saying she "has upheld both the tradition of judicial independence, and our nation's most cherished principle of the right to be secure in one's own home."

He said the Justice Department is required to show probable cause before conducting a criminal search that is expected to lead to prosecution. According to Rosenthal, this is the first time a federal judge has ruled against these specific provisions of the Patriot Act.

Mayfield, a Muslim convert, was taken into custody on May 6, 2004, because of a fingerprint found on a detonator at the scene of the Madrid bombing. The FBI said the print matched Mayfield's. He was released about two weeks later, and the FBI admitted it had erred in saying the fingerprints were his and later apologized.

Before his arrest, the FBI put Mayfield under 24-hour surveillance, listened to his phone calls and surreptitiously searched his home and law office. Last year, the Justice Department's internal watchdog faulted the FBI for sloppy work in the case.

The Associated Press, Washington Post and Seattle Times reporter Hal Bernton contributed to this report.