The Patriot Act on Trial (Page 2)

It took another two weeks for the admission--in the course of testimony by Attorney General Alberto Gonzales to the House judiciary committee--that, well, yes, the FBI had used the Patriot Act in the Mayfield case. Gonzales insisted, "I might add that based on what I know today--and I'm limited in what I can say because this matter is in litigation--I don't believe that the Brandon Mayfield case is an example where there was a misuse or abuse of a provision of the Patriot Act."

Senators weren't so sure. Later, Senator Russell Feingold noted that the Mayfield case "had a big effect on the whole attitude that anybody who criticized the law really wasn't concerned about terrorism." Senator Patrick Leahy, the ranking Democrat on the Judiciary Committee, argued at another committee hearing on the Patriot Act, "I'm thinking of Brandon Mayfield, the Portland attorney," against whom the FBI had no real evidence except that he "did hang out with Muslims." Conservative Republican Larry Craig seemed to evoke the Mayfield case without mentioning it when he told the committee, "I find it very difficult to believe that the federal government can enter my home, strip my hard drive, go through my records and then exit out the back door without telling me they were there."

By then Mayfield was moving on his three lawsuits against the federal government--an effort that gained momentum in June with the court-ordered release of an FBI internal memo, dated before his arrest, noting that the bureau had insufficient evidence to charge him with anything but should arrest him before the media got the story. First, he wants back everything the FBI seized in searches that the government now admits had no national security justification; the government says it needs the information for its legal defense. Second, he's seeking financial damages. Finally, he's challenging the Patriot Act clause that makes it so much easier for the government to do searches. Previously, under the Foreign Intelligence Surveillance Act, the only justification for a secret search was acquiring information on foreign intelligence. Under the Patriot Act that need only be part of the reason, greatly widening the areas where the Justice Department can seek--and apparently always get--a warrant for such a search.

To one of Mayfield's attorneys, Elden Rosenthal of Portland, the sneak-and-peek expansion abandons the Fourth Amendment unnecessarily. "We won World War I, we won World War II, we won the cold war without throwing out the right of Americans to be secure in their homes, without throwing out the Fourth Amendment," Rosenthal says.

On July 15 Federal Judge Ann Aiken held a preliminary hearing in Portland on government efforts to dismiss Mayfield's lawsuits. The day featured the first courtroom appearance of Mayfield's other attorney, celebrity lawyer and CNN legal commentator Gerry Spence, who charged that the FBI arrested Mayfield only because of his Muslim identity, even when there was no evidence he'd ever been to Spain or left Portland. "I am sure that had it been Billy Graham, or one of Billy Graham's children, the FBI might have said that we'd better check it out," he mused. "No airline tickets. How did he get over there to Spain? Must have been that magic carpet. The Muslim magic carpet." To Spence--looking, with his swept-back gray pompadour touching his collar, like a retired gunfighter who'd gone into corporate security--the point of the trial was clear: "Although they say, 'We're really sorry,' we haven't had an opportunity to say if sorry is enough."

Two weeks later Aiken agreed, rejecting government efforts to dismiss the lawsuits, rejecting motions to remove the FBI fingerprint experts as defendants and ordering the government to release all information about the searches and what it was holding.

With more preliminary motions, potential appeals on motions, discovery and a trial ahead, Brandon Mayfield's case against the government has years to go. But in a fairly spectacular development, the Patriot Act itself is at last on trial--although unlike Mayfield, it's not being held in lockdown.

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