Vol. 14, Nos. 34 &35
Covering Cases Published in the Advance Sheets through Aug. 27, 2007

Court Voids Two Key Provisions of the Foreign Intelligence Surveillance Act

A Death Penalty Manual: The Collective Rulings of Judge Garaufis in the Ronell Wilson Case

Government Fails to Toll Statute of Limitations In Order To Obtain Foreign Evidence

Aliens Can't Sue Police For Violating Their Vienna Convention Rights

Forcing Inmates To Sleep on the Floor Violates the Eighth Amendment


Mayfield v. U.S., No. 04-1427-AA (D.Or. Sept. 26, 2007) (Judge Aiken)

In this remarkable 44-page ruling, Judge Ann Aiken held that two key provisions of the Foreign Intelligence Surveillance Act (FISA) of 1978, which were amended by the USA PATRIOT Act in 2001 - namely 50 U.S.C. §§ 1804 and 1823 - are unconstitutional because they permit Federal surveillance and searches of Americans without demonstrating probable cause. In setting forth the essence of her decision, Judge Aiken wrote:

“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. Since the adoption of the Bill of Rights in 1791, the government has been prohibited from gathering evidence for use in a prosecution against an American citizen in a courtroom unless the government could prove the existence of probable cause that a crime has been committed. The hard won legislative compromise previously embodied in FISA reduced the probable cause requirement only for national security intelligence gathering. The Patriot Act effectively eliminates that compromise by allowing the Executive Branch to bypass the Fourth Amendment in gathering evidence for a criminal prosecution.”

She then emphatically concluded:

“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 ill advised.”

The events that gave rise to this extraordinary ruling had their origins in the ashes of the Madrid train bombing on March 11, 2004, in which terrorists killed 191 people and wounded more than 2000. Less than two months later, on May 5, 2005, the FBI arrested Brandon Mayfield, a Muslim but otherwise an obscure Oregon lawyer, and announced that his fingerprint matched one found near the scene of the Madrid bombings.

That claim turned out to be gravely false and a huge embarrassment to the FBI. After Spanish authorities determined that his fingerprint was not a match, Mayfield was released from custody and publicly exonerated; and the FBI actually issued a public apology to Mayfield.

Subsequent internal reviews within the Department of Justice sharply criticized the FBI, not only for mistakenly matching Mayfield's fingerprint but also for its sloppy work and over-zealous conduct in this case. For example, the Office of the Inspector General prepared a huge report, entitled “A Review of the FBI’s Handling of the Brandon Mayfield Case.” Even the “unclassified and redacted” version of this 330-page Report is a scathing rebuke of the FBI’s conduct in this case.

Mayfield later sued the FBI, citing, among other things, the false sworn testimony of some of its agents. Last year, the Government settled that lawsuit with Mayfield, and paid him $2 million in damages for its wrongful arrest. (See "U.S. Settles Suit Filed by Ore. Lawyer: $2 Million Will Be Paid For Wrongful Arrest After Madrid Attack," by Dan Eggen, Washington Post, November 30, 2006.)

Despite that settlement, Mayfield continued to pursue his separate challenges to the constitutionality of §§ 1805 and 1823. Judge Aiken described Mayfield’s complaint in the instant action as follows:

“Plaintiffs' Amended Complaint challenges 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. Plaintiffs allege that 50 U.S.C. § 1804 (electronic surveillance under FISA) and 50 U.S.C. § 1823 (physical searches under FISA) violate the Fourth Amendment on their face. Specifically, plaintiffs allege that pursuant to FISA and in violation of the Fourth Amendment, they were subjected to secret surveillance and searches of their home, law office, vehicles, and communications.”

A recent law review article by Prof. Daniel J. Solove of the George Washington University School of Law helps to put those claims in context. In “Reconstructing Electronic Surveillance Law,” 72 Geo. Wash. L. Rev. 1264 (2004), Prof. Solove wrote:

“The USA PATRIOT Act . . . expanded FISA’s applicability. Previously, FISA applied only when ‘the purpose’ of the investigation was to gather foreign intelligence; the USA PATRIOT Act enlarged FISA’s scope to apply when foreign intelligence gathering was ‘a significant purpose’ of the investigation. This seemingly subtle change has potentially dramatic ramifications. By changing the language from ‘the purpose’ to ‘a significant purpose,’ foreign intelligence gathering no longer needs to be the primary purpose of the surveillance. The government can now rely on loose FISA protections even when foreign intelligence gathering is only one of many goals.”

Judge Aiken’s ruling is a paean to the Fourth Amendment. She fully agreed that the 2001 amendments to FISA a constitutional dilemma in several different ways. She observed, for example:

An equally important part of Judge Aiken’s decision was her outright rejection of the Foreign Intelligence Surveillance Court of Review’s decision in In Re Sealed Case No. 02-001, 310 F.3d 717 (F.I.S.C.R. Nov. 18, 2002) (P&J, 10/28/02), where the FISCR Court rejected a lower court’s ruling that the procedures being used by the Government to spy on persons suspected of terrorist activities were not reasonably designed to protect the rights of American citizens, stating that they “come close” to the standards required by the Fourth Amendment.

In a detailed analysis of that decision, Judge Aiken rejected its rationale, stating that “FISCR's two fundamental premises underlying its ruling are contradictory. FISCR determined both that FISA never contained a purpose requirement, and that in altering the purpose requirement, Congress did not undermine the validity of searches conducted pursuant to FISA.”

She then wrote that:

“perhaps most significantly, In re Sealed Case ignores congressional concern with the appropriate balance between intelligence gathering and criminal law enforcement. It is notable that our Founding Fathers anticipated this very conflict as evidenced by the discussion in the Federalist Papers. Their concern regarding unrestrained government resulted in the separation of powers, checks and balances, and ultimately, the Bill of Rights. Where these important objectives merge, it is critical that we, as a democratic Nation, pay close attention to traditional Fourth Amendment principles. The Fourth Amendment has served this Nation well for 220 years, through many other perils.”

In the end, Judge Aiken summarized: “In place of the Fourth Amendment, the people are expected to defer to the Executive Branch and its representation that it will authorize such surveillance only when appropriate.”


U.S. v. Wilson, 483 F.Supp.2d 348 to 537 (E.D.N.Y. June 8, 2006 thru June 12, 2007) (Judge Garaufis) (Docket No. 04-CR-1016 (NGG)) [26 separate rulings]

In a series of 26 separate rulings reported at 483 F.Supp.2d, pages 348 to 527, Judge Garaufis has provided a valuable compendium of the law on a number of important topics relating to the imposition of the death penalty in Federal cases in New York State. All of these rulings relate to the death sentence that was ultimately imposed on Ronell Wilson following his convictions for the murder of two NYPD detectives in Staten Island in 2003.

Using the provisions of the Federal Death Penalty Act (“FDPA”) (18 U.S.C. §§ 3591-98), the Government charged Wilson with seven separate capital counts including engaging in a pattern of racketeering activity; committing obstruction of justice murder; murder in aid of racketeering and carjacking; use of a firearm in connection with narcotics trafficking; and conspiring to murder rival gang members. The case is particularly significant because Wilson was the first person to face death in a federal case in New York since the 1950s.

The compilation of rulings in this case covers a variety of topics, including:

For further background on this case, see "Jury Agrees on Death Sentence for the Killer of Two Detectives," by Michael Brick, The New York Times, January 31, 2007; and "Geography and Emotion Helped Sway Jurors’ Vote," by James Barron, The New York Times, February 1, 2007. See also the website maintained by “New Yorkers Against the Death Penalty” at http://www.nyadp.org/.


Thomas v. Baca, No. CV-04-08448 DDP (C.D.Cal. Sept. 21, 2007) (Judge Pregerson)

This is an important ruling dealing with prison overcrowding that has the potential of causing significant (and expensive) and far-reaching changes in prison practices in America. It will certainly send chills down the spines of many prison administrators.

Two inmates at the Los Angeles County jail facilities filed this class action lawsuit against Sheriff Leroy Baca of the Los Angeles Sheriff Department (“LASD”), charging that Baca and the LASD violated their constitutional rights by requiring them to sleep on jail floors, both with and without bedding, because of insufficient available beds. The class includes both pre-trial detainees and post-conviction prisoners.

In this eye-opening ruling, Judge Dean Pregerson found that the plaintiffs were entitled to “summary adjudication that (1) there was a custom . . . of requiring inmates to sleep on the floor of LASD facilities, and (2) the custom violates the Eighth and Fourteenth Amendments to the United States Constitution.” Citing a long list of cases, he further concluded that jail officials “custom of floor-sleeping is, objectively, a sufficiently serious deprivation of ‘the minimal civilized measure of life’s necessities’ to warrant protection” from the Eighth Amendment’s prohibition against “cruel and unusual punishment”; and that the jail officials were guilty of “deliberate indifference” for failing to provide the inmates with bunks.

Among his many findings, Judge Pregerson concluded that the evidence established that there were 24,688 separate instances of floor sleeping over a four month period of time at issue; and that a “majority of the inmates slept on the floor for between two and seven nights.” (Sheriff Baca actually conceded that only 94.4% of inmates were given beds during the period of time in question.)

On any given night there are more than 20,000 inmates held in the Los Angeles county jail system; and, as Sheriff Baca recently admitted: “The reality is we just don't have the jail space for the increasing numbers of state prisoners.” (See, http://curbprisonspending.org/article_la_times_4-27-2004.htm) Thus, Judge Pregerson’s order that the LASD provide each inmate with a bed for each night spent in jail presents Los Angeles with a quandary. It will either have to spend significant funds to build new jail facilities or it will have to adopt significant sentencing reforms, such as shortening prison sentences for some non-violent crimes, or revising its strict three strike laws, or granting early release to some inmates.

Whatever happens in this case, one thing is certain: change is coming in California.


In Brief

Profundities of the Law: A Strip Search of 13-Year Old Student Is Upheld: Redding v. Safford United School District # 1, No. 05-15759 (9th Cir. Sept. 21, 2007) - In this case, Savana Redding, a 13-year old student in Arizona, appealed from a Magistrate Judge’s dismissal of her civil rights action, pursuant to 42 U.S.C. § 1983, against her school district and various individuals for conducting a warrantless strip-search on her during school hours and on school premises. The Magistrate Judge, and a majority of this panel, concluded that the search did not violate Savana’s Fourth Amendment rights. Judge Sidney Thomas protested, stating categorically in his bitter dissent: “The school's strip search of Savana Redding violated the Fourth Amendment. To hold otherwise would be to conclude that her constitutional rights did, in fact, disappear at the schoolhouse gate.” Explaining his position, he wrote:

“As we have said ‘[i]t does not require a constitutional scholar to conclude that a nude search of a thirteen-year-old child is an invasion of constitutional rights of some magnitude. More than that: it is a violation of any known principle of human dignity." Calabretta v. Floyd, 189 F.3d 808, 819 (9th Cir. 1999) (internal quotation marks omitted).

“Thirteen-year-old Savana Redding, an honor roll student with no prior disciplinary problems, was required to strip, exposing her breasts and pubic area, in a fruitless search for -- at worst -- prescription strength ibuprofen. Savana had no history of drug involvement of any type, nor was she alleged to have any connection to illegal drug distribution. Rather, school officials based their actions entirely on uncorroborated statement by a student that Savana had given her a few ibuprofen tablets. The school officials did not suspect that the pills were something other than ibuprofen. The nurse recognized the pill immediately as an ibuprofen tablet. At no point did the school officials ask Savana's mother to be present for the search, nor did they permit Savana to call her mother or any other relative during her two and a half hour detention. School officials discovered nothing in the search. Given these circumstances, I would hold that the unwarranted intrusion on Savana's privacy violated the Fourth Amendment.”


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