Brandon Mayfield Gets Hosed By The 9th Circuit

As Fatster noticed, the Ninth Circuit has ruled against Brandon Mayfield on his attempt to hold the PATRIOT Act declared unconstitutional under the Fourth Amendment.

Mayfield was a former suspect in the 2004 Madrid train bombings. After the Madrid bombings, the Spanish National Police (“SNP”) recovered fingerprints from a plastic bag containing explosive detonators. The SNP submitted digital photographs of the fingerprints to Interpol Madrid, which subsequently transmitted them to the FBI in Quantico, Virginia. The FBI searched fingerprints in its system and, among other possibilities, produced Mayfield, an US citizen and lawyer from the Portland Oregon area, as an alleged match. FBI surveillance agents began to watch Mayfield and follow him and members of his family when they traveled to and from the mosque, Mayfield’s law office, the children’s schools, and other family activities. The FBI also applied to the Foreign Intelligence Security Court (“FISC”) for authorization to surreptitiously place electronic listening devices in the Mayfield family home; searched the home while nobody was there; obtained private and protected information about the Mayfields from third parties; searched Mayfield’s law offices; and placed wiretaps on his office and home phones. The application for the FISC order was personally approved by John Ashcroft, then the Attorney General of the United States.

The Spanish SNP, however, looked at the FBI evidence and found it lacking evidentiary credibility. In spite of this fact, the FBI submitted an affidavit to a US Federal court, stating that experts considered the identification of Mayfield 100% positive, intentionally failing to advise that the SNP had reached a diametrically opposite conclusion. As a result, Mayfield was arrested and held on a material witness warrant, and the public informed of his identity and supposed involvement in the bombings. Over two weeks later, the SNP conclusively matched the fingerprint to an unrelated Algerian citizen and Mayfield was absolved. Mayfield sued the US Government under numerous theories including that the PATRIOT Act was unconstitutional under the Fourth Amendment. The government, being in an egregiously bad position, settled with Mayfield and even allowed the unusual provision that he could maintain the Fourth Amendment challenge to PATRIOT, but could only obtain declaratory relief, not monetary damages.

Mayfield pressed his complaint seeking a declaration that PATRIOT was unconstitutional under his stipulated facts, and the District Court of Oregon, in denying the government’s motion to dismiss and granting Mayfield’s motion for summary judgment, agreed with Mayfield and ruled in his favor. The government appealed to the 9th Circuit arguing that the trial court had no jurisdiction because Mayfield had already been compensated, that the court erred in finding PATRIOT unconstitutional and that other matters, in totality, placed the matter outside of the court’s power to award redress. These arguments were proffered by the government in spite of it having knowingly and specifically agreeing that Mayfield intended to raise and argue said issues and agreeing in their unusual settlement agreement to let him do so.

The usually enlightened 9th Circuit, this time took it upon itself to contrive and contort a way out of holding the PATRIOT Act unconstitutional:

The government contends that the district court lacked jurisdiction over Mayfield’s claims because Mayfield lacks the requisite Article III standing. According to the government, Mayfield’s Fourth Amendment claim in the Amended Complaint is based on past injuries and speculation about the possibility of future injuries. Furthermore, as the government argues, the retention of derivative materials obtained from the FISA activities would not be affected by a declaratory judgment because there is no requirement that the government release or destroy the fruits of an unlawful search. The government thus asserts that Mayfield has not demonstrated that his injury is “imminent” or will be redressed by the relief sought. See Defenders of Wildlife, 504 U.S. at 560-61.

Standing is a question of law that we review de novo. Bernhardt v. County of Los Angeles, 279 F.3d 862, 867 (9th Cir. 2002). We also review de novo a grant of summary judgment. Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1039 (9th Cir. 1999). The district court determined that Mayfield alleged an ongoing injury by the very fact of the government’s retention of derivative FISA materials. Mayfield, 504 F. Supp. 2d at 1034. The court further concluded that a judgment declaring the challenged statutory provisions unconstitutional would likely result in the government’s making reasonable efforts to destroy the derivative materials in its possession. Id. We agree that Mayfield suffers an actual, ongoing injury, but do not agree that a declaratory judgment would likely redress that injury. See Johnson v. Stuart, 702 F.2d 193, 196 (9th Cir. 1983). We therefore reverse the judgment of the district court with regard to standing. We also vacate the district court’s judgment on the merits and do not address the question of whether the challenged provisions of FISA, as amended by the PATRIOT Act, are unconstitutional.

The full decision is here.

This appears on its face to be a very ill taken decision. The court has bent over, contrived and contorted to protect the government from action and challenge by Mayfield that the government knowingly and willingly agreed to permit him to carry on when the two parties reached their settlement agreement. Mayfield premised his agreement to settle upon being able to maintain the Fourth Amendment challenge to PATRIOT under the facts and circumstances of his case, the government so agreed and stipulated, Mayfield relied on the same, and the appellate court has come in and wantonly stripped Mayfield of the benefit of his bargain and agreement and unjustly and incredulously awarded the government with a benefit they gave away and were not entitled to. A stunning and curious ruling.

24 replies
  1. Mary says:

    We agree that Mayfield suffers an actual, ongoing injury, but do not agree that a declaratory judgment would likely redress that injury.

    And doesn’t the court have the powers and the duty to fashion a remedy if a dec won’t do it?

    I haven’t read the decision, but it sounds like “hosed” is a really good description. He knew, though, as a lawyer that standing and dec actions are tough and settlement wouldn’t make it easier.

    • bmaz says:

      Normally I would wholeheartedly agree; as you know I am all to familiar with, and willing to point out the proclivity of, Federal courts’ ability to buck up the government and deny plaintiffs on standing and other 12(b)(6) grounds. That is exactly why suing the government is hard and not for the feint of heart; it is a very tough road to hoe. But, here, I simply do not see how the government is entitled to the benefit of this decision in light of their knowing execution of an agreement that had as a critical and essential purpose and provision that Mayfield was permitted to pursue relief under this theory and his set of facts. Simply put, the agreement should rightfully, if anything, serve as waiver and estoppel against the government on these arguments, not Mayfield. There are, of course, a lot of intricacies that, I guess if you stretch credulity, allow the government to still argue the position they did, but to me at least, all the equities are with Mayfield.

  2. MadDog says:

    What’s the chance that Mayfield can get an en banc re-hearing?

    Or is that something only available to TWMBO (They Who Must Be Obeyed) – otherwise known as the Feds?

    This part on page 2, seems to imply the ruling was by the Three Judicial Monkeys (hear no evil, see no evil and speak no evil):

    …According to the terms of the settlement agreement, the only relief available to Mayfield, if he were to prevail on his Fourth Amendment claim, is a declaratory judgment. He may not seek injunctive relief. We hold that, in light of the limited remedy available to Mayfield, he does not have standing to pursue his Fourth Amendment claim because his injuries already have been substantially redressed by the settlement agreement, and a declaratory judgment would not likely impact him or his family. We thus vacate the judgment of the district court…

    I hope our Legal Eagles here can clue us (me particularly) into just what the bounds of a declaratory judgment could and could not provide.

    And secondly, why should someone’s “standing” depend upon whether one’s “injuries” could be further redressed?

    It would seem to me that “standing” is totally separate to whether one can redress “injuries”.

    And thirdly, it sure seems those Three Judicial Monkeys made no effort at all to divine any means to redress “injuries”.

  3. earlofhuntingdon says:

    Allowing the suit to proceed against the government – in the context of an explicit contractual settlement of only a portion of plaintiff’s claims against it – certainly sounds like a consent and waiver of jurisdictional and standing claims that government could have made, but for its agreement.

    This is a classic case of the government allowing one thing to induce settlement, all to its benefit, but fighting like hell and winning to prevent that one thing being made available to the party it settled with. It suggests, um, bad faith and a surprisingly cooperative 9th Circuit.

  4. Peterr says:

    The three judges who heard the case:

    Richard Paez: 1994 Clinton appointee to the CA Central District Court, and elevated to the 9th Circuit in 2000 by Clinton.

    [Interesting note from Judgepedia: “Paez is one of eight judges pressing a claim that Congress has violated the Constitution’s compensation clause by failing to honor promised judicial salary increases in five separate years. The case was thrown out on October 16, 2009, but the group of judges are appealing it to the United States Court of Appeals for the Federal Circuit.”

    Johnnie Rawlinson: 1998 Clinton appointee to the NV District Court; elevated to the 9th Circuit in 2000 by Clinton.

    Raner Collins: 1998 Clinton appointee to the AZ District Court, “sitting by designation” on this case before the 9th Circuit (according to the wording on the decision.)


    • bmaz says:

      Yeah, I am familiar with Collins; this is certainly not a panel/case you would particularly want him to sit on. Very unfortunate.

  5. earlofhuntingdon says:

    The most prominent attribute about Mr. Mayfield, Judge Paez describes in the first sentence in his opinion. It is that he was,

    “a former suspect in the 2004 Madrid train bombings”

    Judge Paez had several ways in which to treat this necessary fact. Most of them implicate the government in sloppy, overreaching policing. In fact, that seems to be a central circumstance driving this case and the government’s earlier – and rare – concession and payment of a cash settlement. Judge Paez, however, finds a way to use it as a label to undercut Mr. Mayfield’s legitimacy, and to foreshadow that he has lost his case.

    He also seems to feel aggrieved that Mr. Mayfield litigation of this aspect of his case, despite “having settled the bulk of his claims against the government”.

    • Mary says:

      The Judge pretty much highlighted exactly why he should have standing, didn’t he? For all future secret star chamber FISCt or AG applications, which don’t require criminal probable cause and don’t have advocacy EVER with respect to those FISCt or AG orders/directives and for which DOJ lawyers seem to be allowed and even encouraged to misrepresent without consequence – the mere fact of having been formerly unconstitutionally surveilled in the past creates a databank flag for future unconstitutional, unwarranted, surveillance.

      • bmaz says:

        Well, yeah, exactly. Precisely why I am so floored by this; that is exactly the basis for a dec action, he has the exact facts and posture/standing you would want to address the issue, and the fucking government entered an agreement specifically contemplating that said claim could maintain. It is simply baffling.

        • Mary says:

          Well, as devil’s advocate on the gov waiver front, I think you could spin out a claim that standing is jurisdictional and is to keep the courts only handling actual cases and controversies as opposed to having people waive standing and agree to send up hypotheticals for the court to decide, so that it is something that maybe a waiver can’t really address bc the issue is more a court/claimant issue than a claimant/defendant issue. Maybe. But even with all that spinning I’m still with you on the basis for the court’s decision – focusing on labelling Mayfield as a terrorist bombing suspect and then saying, “oh well, it’s not like that kind of thing might que you up for more illegal surveillance in the future”

          • bmaz says:

            I might could buy that in the original instance, but not where the government entered into, and the court approved, a settlement that contemplated the issue remaining ripe and viable. For both the court and the plaintiff to argue and hold that the claim is now frustrated is to deny the benefit from, and viability of, the settlement agreement. If I were Mayfield, I might would make noise about moving to set aside the settlement agreement. Not sure I would follow through with it, but I might at least run it up the old flagpole and see what the reaction of the government is. These are all pretty reactionary and off the cuff thoughts I throw out – I am not deep enough on the pleading history to give anything else – but I am offended about the treatment of Mayfield here, irrespective of the ultimate worth of his claims.

            • Mason says:

              The FBI Crime Lab screwed up BIG TIME; first, by declaring a match; and second, by claiming 100% certainty that Mayfield was the source of the print.

              So much for the exactitude of fingerprint ID evidence!

              Meanwhile, I get the sense that Paez saw this case as an effort to create standing and a justiciable controversy by agreement of the parties and he was pissed at the government for settling a case and controversy for money without settling the factual and legal issues that created the case and controversy. I’ve heard of non-disclosure agreements, of course, and maybe the government proposed one, but Mayfield refused, and this was the government’s next offer. Evidently, the trial court approved the settlement.

              No question these issues will come up again, so a declaratory judgment would have been appropriate.

              Guess I’m meandering, but I also find this result rather strange.

              I also agree with your point about the insulting way that the court referred to an innocent Mayfield.

              Take the money and run or petition for rehearing en banc?

              Risk cert petition? I know my answer to that question.

              • bmaz says:

                Mayfield already has the money, petitioning for cert on this decision would not affect that. The only way the money is put back in play would be if he had the balls to, based on this bogus decision, seek to set aside the original agreement under the theory that it has been frustrated and breached by the government’s actions. I have not seen the actual settlement agreement, nor court record and discussion regarding acceptance thereto, so probably I am full of shit in pondering this. From an equity view though, the argument seems to have some basis…..

  6. Jeff Kaye says:

    I had not kept up with this case. A remarkable (or maybe not so remarkable, in the sense of unusual) example of justice denied in the name of protecting “national” interests. I know that’s not what the 9th said, that they simply said he didn’t “have standing to pursue his Fourth Amendment claim because his injuries already have been substantially redressed by the settlement agreement.”

    When you’re a critic of the “system” or “establishment” as a whole, this is the kind of decision that one would expect from a generally servile judicial system. I’m sort of surprised, though, it came from the 9th.

  7. powwow says:

    Thanks for tackling this latest Judicial Branch travesty, bmaz. I think I’m going to have to pass on reading this “decision” for awhile, from the looks of it. What a disgrace.

    To give a flavor of the profound and far-reaching issues that this 3-judge panel exerted itself to avoid confronting, here’s a partial transcript (somewhat revised and extended) of the full 2/5/2009 oral argument, that I first posted in a comment at Glenn’s – The DOJ claims that data derived from unlawful FISA “take” is lawful:

    Government Attorney Scott McIntosh: So the only relief the court could enter here was a declaratory judgement, and the only declaration [by Judge Aiken in Oregon] was a declaration that these provisions [of FISA, as amended by the PATRIOT Act to allow “a significant purpose” to replace “the purpose” for a FISA warrant permitting “foreign intelligence” surveillance inside the U.S.] are facially unConstitutional. The problem, from the plaintiffs’ standpoint, is that declaration does not obligate the Government to destroy or otherwise divest itself of the derivative FISA materials. And absent any such…

    Judge Paez: So how would the government view such a judgement?

    Government: Pardon me, your honor?

    Judge Paez: How would the government view such a judgement? That is, it’s just a document from the [district] court that says the statute’s unConstitutional? [FISA, as amended by the PATRIOT Act to require foreign intelligence surveillance in the U.S. be only “a significant purpose” not “the purpose” of a FISA warrant.] Would it prompt the government to take any action?

    Government Attorney Scott McIntosh: Well, under the terms of the agreement – the settlement agreement itself – a declaratory judgement to that effect would mean the Government could not use those [FISA] provisions in the future against the Mayfields. Now, that’s of no real-world consequence, because there’s no prospect that that would happen [again…] in any event. Ah, but in terms of the agreement itself, that’s the only consequence. What [Judge Aiken’s opinion] doesn’t do is obligate the government to dispense with the derivative materials. And in fact, if you look at the agreement – the settlement agreement – it distinguishes very clearly between what the government has to do with the FISA take on the one hand, and what it has to do with the FISA derivative materials on the other. The agreement spells out very specifically that while the government is undertaking to destroy the FISA take, it is not undertaking to get rid of the derivative FISA materials.

    Judge Paez: I guess that means that the government intends to retain the derivative material.

    Government: That’s correct, your Honor. And the government…

    Judge Paez: Is that perfectly permissible under FISA?

    Government: Yes, your Honor. There’s nothing in FISA that would require the government to get rid of the materials.

    Judge Paez: Is there anything in FISA that allows you to retain the material?

    Government: Well, I, um, the, FISA allowed us to acquire the materials and having acquired them there’s nothing in it that would require us to divest ourselves of them. So, I… I mean, there’s no affirmative provision saying you can keep it. I guess another way to think about it is, FISA has a minimization, has minimization procedures [“Yes” says Judge Paez], and those procedures themselves, um, focus not on derivative materials, in general, but on the actual, the immediate take. So, FISA may place limits on what the government can do with the take, but it doesn’t place limits on what the government can do with derivative – things that are derived from the take.


    Government: The district court thought that in doing so [changing “the primary” purpose test for a FISA warrant to “a significant” purpose test], Congress had crossed a Constitutional line – it had transformed FISA from a device for seeking out foreign intelligence information, into a means of pursuing ordinary crime, and that therefore conventional Fourth Amendment standards should apply. That was incorrect. To explain why, let me walk through the statute a little bit. And let me talk about what Congress – or what, pardon, what the Government can do and what the Government can’t do by virtue of the significant purpose standard [the PATRIOT Act revision to FISA]. One thing it can’t do is use FISA when the primary purpose of the investigation or the surveillance is to pursue a non-foreign intelligence crime – a so-called ordinary crime. That’s what the FISA Court of Review held in the [2002] Sealed case – that decision’s binding on the Government; it controls every FISA application we file. So, right off the bat the Government’s confined to so-called foreign intelligence crimes.


    Judge Paez: Are you suggesting that the addition of the word “significant” really is of no Constitutional significance?

    Government: It has no Constitutional significance, in the sense that it doesn’t raise the bar under the Fourth Amendment. It has practical significance to the Government because – if, as one moves, if one were to move back to a primary purpose test, it creates that hydraulic pressure to separate out these functions, that’s so detrimental to foreign intelligence surveillance. It also is… There’s also sort of another practical reason for moving in the direction that Congress moved, and that is that at the outset of an investigation, it’s often difficult, as a real-world matter, to figure out what the primary purpose is. You may well expect to get evidence of a crime, ah, you almost invariably expect to get other kinds of evidence that are highly significant foreign intelligence information. Identifying what the primary purpose is can be difficult, can be arbitrary, and it’s a recognition, I think, on the part of Congress that as long as there is a significant purpose to what the surveillance is aimed at, beyond just a criminal prosecution, there’s no purpose to be served – pardon the word – there’s no reason, there’s no reason for the Government to have to parse it any more finely and say ‘is this 51-49 or 49-51.’ But that’s not a Constitutionally-significant difference and there’s no reason to have the use of FISA turn on that distinction.


    Mayfield Counsel Elden Rosenthal: The challenged amendments to FISA, your Honors, are revolutionary in their sweep. The betrayal of the Bill of Rights contained in these amendments threatens to historically alter our understanding of the Fourth Amendment. What happened to Brandon Mayfield and his family is a direct result of the amendments challenged here.


    The parties pursued settlement. We agreed on damages. We agreed that the FISA take should be destroyed. We, the plaintiffs, demanded that the derivative materials be destroyed, or quarantined in some way, and the government refused. That controversy was in the original complaint and it carried over into the amended complaint.


    Mayfield Counsel: Your Honor, I served as co-counsel below, also. What happened below is that Judge Aiken asked the parties on the record to pursue settlement. The parties pursued settlement. We agreed on damages. We agreed that the FISA take should be destroyed. We, the plaintiffs, demanded that the derivative materials be destroyed, or quarantined in some way, and the government refused.


    Judge Paez: No, well, if you read – the way I read [Judge Aiken’s] opinion was that she was suggesting that – at least along this area, redressability – was that having entered a declaration that the [FISA] statutes are unConstitutional, that the Government, in its good graces, would on its own, segregate, destroy, do whatever, with respect to the derivative material. And then we hear the Government today say ’we’re not doin’ that.’


    Mayfield Counsel: It’s when the primary purpose ceases to be foreign intelligence gathering that these Fourth Amendment deficiencies [in PATRIOT Act-amended FISA] become so significant to our thinking about what the Fourth Amendment means. …-skip-… I only posit that to you, your Honor, because the Fourth Amendment at its heart is designed to protect us against sovereign abuses. That’s the purpose of it.


    Mayfield Counsel: And what has happened here is that the warrant clause is being invaded. What has happened here is that, for the first time in the history of our country the Executive department can have as its primary purpose domestic political surveillance, criminal prosecution, and in good faith can go to the FISA Court and say ‘well a significant purpose is foreign intelligence gathering’ and not even voice what its primary purpose is. But any purpose other than foreign intelligence gathering as a primary purpose blows apart this very limited exception to the Fourth Amendment.


    Mayfield Counsel: Yes, because, on its face, your Honor, on its face, the way FISA is now written, the Fourth Amendment procedural safeguards when the government is involved in criminal prosecution are not met. They simply are not met.


    Mayfield Counsel: All that the statute needs to do to be fixed is to go back to primary purpose, so that the government simply goes to the FISA Court and says ’our primary purpose is gathering foreign intelligence’ – then it’s Constitutional, in our opinion. But under the current set-up, where the government never has to do that, didn’t do it in this case by stipulation, and even when it shows probable cause, gets a warrant that is more akin to a General Warrant which is one of the things we fought the Revolution over.


    Government: I have a different reading of that [amended complaint/settlement provision], your Honor. I think you look at – I’ll read it through (this is [Paragraph 25, subparagraph] C): [This violation of the Fourth Amendment] “permit[s] the Government to covertly collect, disseminate, and retain information collected through covert physical searches and electronic surveillance.” I understand that, your Honor, to refer to the take, not to anything that might be derivative. For example, if the government conducts surveillance and that leads to an interview with someone which leads to an interview with someone else which leads to some other evidence gathering – that’s derivative material but that’s not within the scope of what’s being discussed here in C. That’s not information collected through covert physical searches and surveillance.

    To read the details of what our government did to American citizen Brandon Mayfield and his family, with a grossly-incompetent and/or Muslim-biased abuse of federal police powers, read Judge Aiken’s district court decision.

    Only Judge Paez surfaced as an involved questioner during that oral argument; he closed the arguments by saying “interesting case.” The other two judges were not impressive – one was almost silent. I had started to figure – as I’m afraid I’m starting to figure with regard to Judge Walker, as well, after his cop-out on the FAA immunity – that the unnecessary length of time it was taking to render this decision (especially given the fact that, as it turned out, the panel ended up dodging the main issue) was an indication that this panel was, disgracefully, fearful of going where the law led, and was instead searching for an escape hatch to allow them to avoid during their duty.

    A reminder that the seemingly-small, but in fact profound, change at issue, from “the primary” to “a significant” purpose for a FISA warrant, was quickly made in 2001 via the PATRIOT Act, and later upheld in a (quite-dubious, and apparently first-ever) FISA Court of Review opinion in 2002 (that overturned the hands-on FISA Court judges themselves), which was never appealed to the Supreme Court, because only the government could appeal, and the ruling upheld its position… Judge Aiken, with integrity and bravery, in 2007 flatly disagreed with that FISA Court of Review opinion. This Ninth Circuit Appeals panel, more than two years later, decided instead to crawl under their desks.

    P.S. By the way, that’s the infamous “Scott McIntosh” that ondelette frequently references in comments, at least at UT.

    • bobschacht says:

      There’s also sort of another practical reason for moving in the direction that Congress moved, and that is that at the outset of an investigation, it’s often difficult, as a real-world matter, to figure out what the primary purpose is. You may well expect to get evidence of a crime, ah, you almost invariably expect to get other kinds of evidence that are highly significant foreign intelligence information. Identifying what the primary purpose is can be difficult, can be arbitrary, and it’s a recognition, I think, on the part of Congress that as long as there is a significant purpose to what the surveillance is aimed at, beyond just a criminal prosecution, there’s no purpose to be served – pardon the word – there’s no reason, there’s no reason for the Government to have to parse it any more finely and say ‘is this 51-49 or 49-51.’

      Don’t overlook this passage. After all, if you’re conducting a hoovering operation designed to vacuum up all kinds of stuff that might be useful later, there is no “primary purpose.” This gets to the heart of the “warrantless searches” business: To get a warrant, you need a primary purpose.

      Thanks, powwow.

      Bob in AZ

    • bmaz says:

      That is the thing here though powwow, the panel here did “crawl under the desk” in that if they were going to make the ruling, they should have had the courage to do it on the merits and truly fuck the citizenry and inform them once and for all that the 4th Amendment no longer exists. Instead, they hid behind the fraudulent guise that Mayfield had no operational remedy and, therefore, no standing. It is shameful. Also, I will bet you dollars to donuts that the one detached panel member was Raner Collins; he is a decent chap, but this kind of law and inquiry is just does not strike me as his cup of tea.

      • powwow says:

        [If this Ninth Circuit panel] were going to make the ruling, they should have had the courage to do it on the merits and truly fuck the citizenry and inform them once and for all that the 4th Amendment no longer exists.

        Good point.

        I was about to simply concur with you that, yes, the silent one was the other male (“Raner” Collins being a male), and then I realized that there were, according to the opinion, two other males besides Paez.

        Yet I could have and would have sworn that the the third panelist during oral argument was a female (in fact, because of the unusual name “Raner” I assumed the female – believing it was Collins – was the district judge who was sitting in). But since “Johnnie Rawlinson” is a male, I see per Peterr’s link @ 9, that makes three males on the panel, and I guess I can’t now say whether it was Collins or Rawlinson who was the almost-silent one. I just relistened to the first twenty minutes of the argument, and the second questioner is the judge I mistook as a female (speaking up just before 10 minutes in), who still sounds like a female to me. The third judge speaks up briefly at about 17 minutes in, on the question of jurisdiction, and the “female” judge again at 20 minutes in.

        As I recall, the other (apparently male) judge besides Paez who spoke up (Rawlinson or Collins) seemed stuck on one particular, pre-conceived notion about the right way to establish the threshold facts needed to find a statute “facially” unConstitutional (based on the Salerno decision), and the difference between criminal and foreign intelligence investigations as regards the jurisdiction of the Fourth Amendment. Mayfield’s counsel Rosenthal would rebut/correct him, and then he would come back again, with seemingly the same question a bit later. Rosenthal may finally have convinced him, I don’t know. Collins (I assume) was, I think, finally prompted at some point by Paez to make sure he had no questions (or another question, beyond the one he asked).

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