Author: Kenny, Jack
Date published: September 19, 2011
No one was home when the FBI began visiting the Mayfield residence in Aloha. Oregon, a suburb of Portland, early in the spring of 2004. The agents did, however, see plenty of Brandon Mayfield. a Portland lawyer, his Egyptian-born wife. Mona, and their three children. According to court records, the agents had been following the Muslim family to and from their mosque, at the children's schools, and at various family activities. They obtained from the Foreign Intelligence Surveillance Court what is commonly called a "sneak and peek" warrant that permits the search of property without notifying the suspect party until six months later. Investigators planted electronic listening devices in the "shared and intimate" rooms of the Mayfield home and in Mayfield's law offices. They photographed files and downloaded hard drives. They placed wiretaps on both home and office phones. The application for the FISC order was personally approved by John Ashcroft, then the Attorney General of the United States.
Why was our government so interested Mayfield's files, activities, and conversations? A U.S. citizen born in Kansas, Mayfield is a convert to the Muslim faith. He was aware that the FBI had been investigating Muslims in the Portland area, particularly a group that became known as "The Portland Six," whose members were convicted on money-laundering and weapons charges related to their efforts in support of the Taliban fighting U.S. and allied forces in Afghanistan. One of them. Jeffrey Battles, had retained Mayfield as his lawyer in a child custody case.
All Right With Being Wrong
Then came the March 2004 train bombing in Madrid, killing 191 and injuring more than 1,800. Spanish National Police discovered fingerprints on a bag of detonator caps found near the wreckage. They sent digital images of the prints to the FBI. where experts ran them through their database and found 20 candidates with prints matching those found on the bag. The FBI did background checks on each of the candidates, one of whom was Mayfield, a former Army lieutenant.
Specifically, the experts said one of the prints on the bag matched the print of Mayfield's left index finger. The Spanish authorities, however, after examining Mayfield's prints and meeting with FBI agents in Madrid, concluded it was not a match. But in an affidavit submitted to the U.S. District Court in Portland, the FBI claimed a "100% positive identification" of the latent print as Mayfield's. The affidavit did not mention that the Spanish investigators had reached a different conclusion, but did include information about Mayfield's religion and his association with other Muslims in the Portland area. The court appointed an independent fingerprint expert who also concluded the print was from Mayfield.
The government identified Mayfield as a material witness in the train-bombing case, and the court issued several warrants authorizing searches of his home and office. Agents, obviously wishing to be thorough, seized computer files and papers, including his children's homework. They arrested Mayfield. who insisted he had never been to Spain and had not been anywhere outside the United States since 1994. His family was not told where he was. but was told his fingerprints matched those of the Madrid bomber and that he was the prime suspect in a crime punishable by death. Two weeks later. Spain had matched the mysterious fingerprint with an Algerian citizen named Ouhane Daoud. The next day Mayfield was released.
But the damage done to Mayfield went beyond two weeks of lost liberty. His reputation had been damaged by headlines identifying him with the Madrid bombing. Worse, the FBI had copies of his confidential legal files, compromising the privacy of his clients and subverting the lawyer-client privilege. He brought a civil-rights lawsuit against the government and in November of 2006 Mayfield won a $2 million settlement and, something far more rare, an apology from the FBI.
"The United States of America apologizes to Mr. Brandon Mayfield and his family for the suffering caused" by his mistaken arrest, the apology began, adding that the FBI had taken steps "to ensure that what happened to Mr. Mayfield and the Mayfield family does not happen again." According to a Justice Department inspector generai report issued earlier that year, the FBI had not abused its expanded search and seizure powers under the Patriot Act and did not target Mayfield because of his Muslim faith.
The settlement included a provision guaranteeing the government immunity from future liability in the case, though it permitted Mayfield to continue seeking a judgment declaring the secret search and wiretap provisions of the Patriot Act as a violation of the Fourth Amendment protection against unreasonable search and seizure. The Justice Department also agreed to destroy the documents obtained through its electronic surveillance under the FISA (Foreign Intelligence Surveillance Act) warrant and return to Mayfield all physical materials its agents had seized. In December 2006. Mayfield filed an amended suit for declaratory judgment, claiming the government refused to identify and destroy all materials derived from the FISA searches and seizures, and that he feared future uses of the materials as well as other future applications of FISA against him and his family.
The U.S. District Court in Portland ruled in favor of Mayfield's constitutional claims. In place of the Fourth Amendment guarantees. Judge Ann Aiken wrote, "the people are expected to defer to the Executive Branch and its representation that it will authorize such surveillance only when appropriate." The government, she concluded, "is asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. This court declines to do so."
The Justice Department appealed the ruling, claiming Mayfield lacked standing for his suit, since the settlement precluded an appeal for injunctive relief and a declaratory judgment would not remedy the injury Mayfield claimed. It would not. the government argued, affect its retention of materials derived from the FISA search since there is no requirement in /aw that the government release or destroy the fruits of an unlawful search. The Ninth Circuit Court of Appeals in San Francisco, widely regarded as the most liberal of the nation's appellate courts, ruled in favor of the government and vacated the District Court decision without ruling on the constitutional questions.
Road From "Terror" to Torment
The Foreign Intelligence Surveillance Court, which authorized the initial searches of Mayfield's home and offices, was established by the Foreign Intelligence Surveillance Act of 1978. Originally warrants by the FISA court were limited to searches of foreign agents, and the information obtained was to be only for foreign intelligence gathering and not criminal prosecutions. But the Patriot Act. pushed by the Bush administration and passed by Congress immediately after the terrorist attacks of September I I. 2001. amended the law to broaden the scope of FISA searches. Now the subject of the search need not be a foreign agent, and obtaining foreign intelligence need only be a "primary purpose" of the search. And the ban on using evidence obtained in a FISA search in a criminal prosecution was repealed. The result was that the FISA warrants, issued without the Fourth Amendment requirement of probable cause, could be used to build a case against a potential criminal defendant.
And the FISA court, located within the Department of Justice, is hardly neutral in assessing the government's request for a warrant. "The FISA court may be the biggest bunch of lapdogs in the federal government." wrote libertarian author James Bovard. "The court approved almost every one of the 15,000 search-warrant requests the feds submitted between 1978 and 2002 and continues to approve more than 99 percent of requests." That the "sneak and peek" warrant for the Mayfield search case was authorized by the Attorney General underscores the fact that FISA warrants are not issued by a neutral magistrate, as is normally required in criminal investigations.
Allowing the government to write its own search warrants was a common practice when the North American colonies were ruled by the British Parliament. With self-issued warrants called Writs of Assistance, the King's soldiers and other officials exercised virtually unlimited authority to enter homes and other private buildings to search for smuggled goods. The Fourth Amendment was written to ensure that warrants would be issued only on probable cause for believing that the subject of the search was involved in or had knowledge of a crime, and to protect individuals IV(UH prosecutorial fishing expeditions. All warrants must particularly describe "the place to be searched and the person or things to be seized."
Other guarantees in the Bill of Rights have similarly been abridged or ignored altogether in the decade since the 9/1 1 attacks. The First Amendment's "right of the people peaceably to assemble, and to petition the government for redress of grievances" has often been limited to what are ironically called "free speech zones," established to keep protesters out of the sight and hearing of the government officials being picketed. The Bush administration greatly expanded the use of free speech zones after 9/11. but the practice has become bipartisan. It was almost comical to see, at the Democratic National Convention in Boston in 2004. demonstrators confined to a "free speech zone" in a fenced in area - one could fairly call it a cage - under a bridge and well out of sight of the delegates and dignitaries going to and from the convention at the Fleet Center. Such an arrangement suggests that neither free speech nor peaceable assembly is the "right of the people" but is, rather, a privilege granted at the sufferance and convenience of the State.
At least some officials are seeing - and watching - protesters, however, even when they are not demonstrating in public. In October 20Ol . A.J. Brown, a freshman at Durham Technical College in North Carolina, answered a knock on her apartment door and was startled to find agents from the Raleigh office of the Secret Service and a Durham Police investigator. They were there in response to an anonymous tip about an "anti-American" poster on her wall. The poster, with its anti-death penalty message, featured an image of George W. Bush holding a rope against a backdrop of lynching victims and a text that read: "We hang on your every word."
Did she have any information about Afghanistan, her visitors wanted to know. About the Taliban? At their request, she filled out a form, providing her name, race, phone number, and other personal information that is now quite likely in a government database having something to do with terrorism.
On September 19. 2011, exactly one week after the terrorist attacks of 9/1 1, Congress passed the Authorization for Use of Military Force, authorizing the President to use "aí necessary and appropriate force" against al-Qaeda and other organizations or nations that "committed or aided in the September 1 1th attacks." The AUMF became the legal basis for our war with Afghanistan. But the Bush administration also claimed that an authorization to wage war included the right to hold prisoners, including American citizens, captive indefinitely, without trial, as "enemy combatants" whether or not they are captured on or near a field of battle and regardless of whether they have ever engaged in combat against the United States.
Perhaps the best known of these enemy combatants is Jose Padilla, an American-born citizen who was arrested at Chicago's O'Hare airport on his return from Pakistan in May of 2002. He was first held as a material witness before his status was changed to enemy combatant, and he was transferred to a U.S. Navy brig in Charleston. South Carolina. Attorney General Ashcroft, who was in Moscow at the time of the arrest, held a press conference in front of the Kremlin to announce that Padilla was involved in a plot to detonate a radioactive "dirty bomb" somewhere in the United States. Yet no charge was brought against the prisoner for the three and half years he spent in solitary confinement in the Navy brig. Only after he had been there a year and a half was he allowed to meet with an attorney, and then only to discuss his habeas corpus petition to appear in court to challenge the grounds for his detention. Military officials were present at all conversations between Padilla and his lawyers.
Not until the Supreme Court was about to hear the habeas petition did the government move to indict Padilla, charging him and two other defendants with conspiracy to murder, kidnap, and maim; conspiracy to provide material support for terrorism: and providing material support for terrorism. The "dirty bomb" plot for which Padilla had been arrested was nowhere mentioned, and for a good reason. It would not have held up in court, since it was based on information provided by Khalid Sheikh Mohammed, alleged mastermind of the 9/1 1 attacks, after Mohammed had been subjected to waterboarding.
In a Miami courtroom, prosecutors told the jury Padilla had traveled to Afghanistan in 1998 to train with al-Qaeda terrorists and that his fingerprints and personal information had been found on an application for admission to an al-Qaeda training camp. The applicant claimed to speak English, Spanish, and Arabic, which Padilla does, the prosecution noted. The jury also heard FBI tapes of the defendants' telephone conversations in which they spoke in Arabic and, according to the prosecution, made coded references to terrorist activities.
It took the jury just a day and half of deliberation to find the three men guilty. though the jurors must have been hardpressed to judge the authenticity of the application form Padilla allegedly filled out - in Arabic and with an alias. "You don't mail away for it," Assistant U.S. Attorney Brian K. Frazier said of the fivepage form on which Padilla allegedly left seven fingerprints. "You are already inside the Al Qaeda organization when you get this form." But the FBI. as would become embarrassingly clear in the Mayfield case, is not infallible in identifying fingerprints. And why would a terrorist organization, which one might expect would be wary of leaving a "paper trail." ask candidates for admission to fill out application forms?
One might also wonder how much jurors could have learned by listening to "coded" conversations in Arabic, even when provided with translations. According to an expert witness, "playing football" meant engaging in Jihad, "dogs" referred to the U.S. government, and "zucchini" retened to weapons. While the prosecution did not produce a single witness who had ever seen Padilla in Afghanistan, they did play the tape of a phone conversation in which someone told another of the defendants that "Ibrahim" - an alleged alias of Padilla's - was in "the area of Usama," which an expert witness described as code for Afghanistan.
Even assuming the prosecution and the jury got it right and Padilla is guilty and deserving of the 17-year prison sentence he received, his earlier confinement - without charge and without trial for three and half years, much of that time without access to a lawyer - violated basic concepts of liberty that are older than our Constitution. The principle of habeas corpus, requiring the jailer to present the accused at court, is a cornerstone of the English Magna Carta, signed by King John (admittedly under duress by rebellious noblemen) in 1215. Our own Constitution guarantees: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion the public Safety may require it." There was no rebellion or invasion of the United States taking place during the years when Jose Padilla and other "enemy combatants" were being held indefinitely without trial.
From Torment to Torture
For those not fortunate enough to be American citizens, the government's suspicion of terrorist or terrorist-related activity can result in even harsher consequences. Maher Arar, a Syrian-born resident of Canada, with citizenship in both countries, was apprehended by U.S. authorities at JFK airport in New York in 2002 on his way back to Canada from a family vacation in Tunisia. Acting on a tip from the Canadian government that Arar was the subject of a "lookout" as a "member of a known terrorist organization." U.S. officials interrogated him in New York and then sent him for further interrogation to Syria under a policy called "extraordinary rendition." Arar's account of his 10 months in Syria included confinement in a rat-infested "grave cell," six feet long and three feet wide: repeated beatings with a two-inch thick electrical cable; electric shocks; and other forms of torture. He was released after the Canadian government discovered its identification of him as a terrorist suspect was based on faulty information. Following a lengthy investigation, Canada granted Arar an official apology and $10.5 million in compensation. The United States offered neither apology nor compensation.
His suit against the U.S. government was dismissed in a U.S. District Court in New York, and his appeal was denied by a three-judge panel of the U.S. Circuit Court of Appeals for the Second Circuit. The appeals court ruled that Congress had made no provision for damages suffered under extraordinary rendition and the court had no authority to create one. In June of last year, the Supreme Court turned down Arar's petition for review without comment.
The decision "eliminates my last bit of hope in the judicial system of the United States," Arar said at the time. "When it comes to 'national security' matters, the judicial system has willingly abandoned its sacred role of ensuring that no one is above the law.... Unless the American people stand up for justice they will soon see their hard-won civil liberties taken away from them as well."