http://www.oregonlive.com/newsflash/index.ssf?/base/news-29/123388468428190.xml&storylist=orlocal

2/5/2009, 5:38 p.m. PST
By RYAN KOST
The Associated Press

PORTLAND, Ore. (AP) — Brandon Mayfield’s case could have been over years ago.

Wrongly accused of having participated in the Madrid train bombings of 2004 that killed 191 people, the Portland attorney sued the government for their mistake. In 2006, he got an apology — and a $2 million settlement.

Two years later, he’s still in court, hoping to overturn two pillars of the USA Patriot Act that ensnared him years earlier.

“It really is important,” he said Thursday morning outside Portland’s Pioneer Courthouse. “I think the people who follow (this case) realize it’s a whittling away of our civil liberties.”

Earlier that morning Mayfield and his lawyers argued his case yet again, this time before the 9th U.S. Circuit Court of Appeals. It was one more step in a process that will stretch on for months, if not years, to come.

U.S. District Judge Ann Aiken ruled in Mayfield’s favor in 2007, finding it was unconstitutional to use the Patriot Act to authorize secret searches and wiretapping primarily for purposes other than foreign intelligence. But the Bush administration quickly appealed the decision.

On Thursday, the appeals court heard oral arguments on two main issues.

First, Mayfield’s attorney argued that the Federal Intelligence Surveillance Act, or FISA, as amended by the Patriot Act, was unconstitutional.

Before the Patriot Act was passed, the government had to show its purpose in obtaining secret search and surveillance warrants was specifically intelligence gathering.

The Patriot Act changed those conditions so that the government had only to prove that intelligence gathering was “a significant purpose” of the warrant.

It’s a small change, but one of great consequence, said Elden Rosenthal, the attorney who represents Mayfield.

Rosenthal argued the government misused that privilege as a way to build a criminal case against Mayfield, not to collect intelligence.

Second, though the government has destroyed or returned the documents and recordings it collected while investigating Mayfield, it has retained copies and summaries of the originals. Rosenthal and Mayfield believe that the district court decision compels the government to destroy those as well.

Scott McIntosh, the Justice Department’s lawyer, told the appeals court the government believed the district court lacked the proper jurisdiction to strike down pieces of the Patriot Act.

He also disputed Rosenthal’s argument that the earlier opinion meant that the government should destroy the copies and summaries.

Rosenthal stuck to his arguments, saying the new wording the Patriot Act added to the surveillance act is in direct violation of the Fourth Amendment.

“This law is the first time since 1791 that the federal government can sneak into somebody’s house without meeting the strict requirement of the Fourth Amendment,” Rosenthal said later, echoing his earlier comments to the appeals court.

After the arguments, Mayfield told reporters that he hoped his continued fight would “make sure what happened to us doesn’t happen to other people.”

Mayfield said he understood the need for the surveillance and Patriot acts, but said they — just like the Fourth Amendment — should not be absolute. “We need to be protected from foreign entities,” he said, “but also from abuse of powers.”

Win or lose, Mayfield expects the decision will be appealed again.

Mayfield and Rosenthal said, however, there is a chance the new Obama administration could decide not to push forward if Mayfield wins.

“Nobody is saying this is the end of the road,” Rosenthal said. “But nobody knows what’s going to happen next.”