Portland Seven defendants all plead guilty.

The government is using its expanded wiretap powers under the Patriot Act to bypass the Fourth Amendment in criminal cases involving United States citizens, the American Civil Liberties Union said in a friend-of-the-court brief filed in U.S. District Court in Portland on September 19, 2003. The ACLU brief was filed in the case of the so-called "Portland Seven," in which a group of United States citizens was charged with attempting to travel to Afghanistan in order to contribute their services to the Taliban and Al-Qaida.

The constitutional questions raised by the government’s use of secret court wiretaps to gather evidence for criminal prosecutions remain unanswered because all of the detained defendants in the Portland Seven case pled guilty to one or more charges before the court could rule on the constitutional issues. However, the ACLU’s concerns remain.

"The government’s actions sound an ominous note for the future of privacy in America, in which the Constitution and the courts are treated like an obstacle, rather than a path, to justice," said National ACLU Associate Legal Director Ann Beeson, who co-authored ACLU’s brief.

"No one is questioning the government’s authority to prosecute spies and terrorists," she added, "but we do not need to waive the Constitution in order to do so."

In the Portland Seven case, one of the first of its kind, the court was asked to review the constitutionality of wiretap evidence obtained under the Foreign Intelligence Surveillance Act (FISA), which was expanded under the Patriot Act. Prior to the Patriot Act, the government could only use these wiretaps to gather foreign intelligence, not to gather evidence of criminal activity.

The government admitted in legal papers that agents secretly entered people’s homes to install bugging devices that remained in place for months. The devices recorded the conversations of everyone in the house, including children and visitors.

Notably, the only court to uphold the expanded FISA powers is the secret Foreign Intelligence Surveillance Court of Review, which issued its decision November 18, 2002, after a closed hearing in which only the government was allowed to present its case. The ACLU and others filed friend-of-the-court briefs in that extraordinary case, but the Supreme Court ultimately declined to review it, leaving the decision intact – and squarely at odds with the Fourth Amendment.

ACLU of Oregon Executive Director David Fidanque said the secrecy of FISA proceedings invites abuse by the FBI and other federal agencies.

"Before trial in a normal criminal case, defendants would have a right to examine the statements made by the government in order to get the wiretap order," Fidanque said. "But under the Patriot Act, all of that material is classified. Even if the government intentionally lied to the FISA Court, the defendants’ lawyers aren’t allowed to see that material unless they can show evidence of the government’s deception. Obviously, there is no way to make that showing if the material is secret. It’s a classic Catch-22."

The ACLU’s brief in the Portland case, U.S. v. Jeffrey Leon Battle et al., was joined by the ACLU of Oregon and the National Association of Criminal Defense Lawyers. The brief, along with an ACLU website feature on FISA, is online at www.aclu.org under the Safe and Free banner.