Government FISA appeal headed to court

WASHINGTON, Jan. 5 (UPI) -- A dormant government appeal of a 2007 ruling that said the Foreign Intelligence Surveillance Act is unconstitutional will be argued in court.

The Ninth Circuit Court of Appeals in Portland, Ore., has scheduled a Feb. 5, 2009 court date to hear a government appeal of the 2007 judicial ruling that FISA, as modified by the USA PATRIOT Act, is unconstitutional, according to Secrecy News, a Federation of American Scientists project on government secrecy.

FISA, an act passed by Congress and designed to give security authorities authorization to collect intelligence within the United States, was called unconstitutional after an arrest of a suspected terrorist in 2004. Brandon Mayfield was wrongfully arrested for an alleged connection with the 2004 Madrid terrorist bombings based on a false fingerprint and other intelligence collected under a warrant obtained under FISA. Mayfield's lawyers argued that the grounds for his arrest under the FISA act violated his Fourth Amendment rights.

According to an opinion summarized by Judge Vaughn Walker, FISA "eroded the requirement of probable cause as a pre-condition for obtaining a search warrant," Secrecy News reported.

Walker also wrote that FISA violated Mayfield's Fourth Amendment rights because under FISA, warrants were issued without the FBI proving a primary purpose for collecting the intelligence.

The government's appeal has been dormant since May 2008.