The Patriot Act on Trial

The Patriot Act on Trial

We won the cold war without throwing out the right of Americans to be secure in their homes, without throwing out the Fourth Amendment.


Brandon Mayfield is the Justice Department’s worst nightmare. Not because he’s done anything illegal or dangerous to American security but because he hasn’t.

That simple reality, now repeatedly admitted and apologized for, is likely to give both the Justice Department and the Patriot Act their most pointed courtroom challenge since the act was passed. This summer in Portland saw the first hearing on three lawsuits–featuring a media superstar lawyer, more government lawyers than could fit at the defense table, the Fourth Amendment, a claim for major damages and repeated concerns expressed by US senators–taking on the post-9/11 operations of the Justice Department.

The case began in March 2004 after the terrorist bombings in Madrid, when the Spanish government found a partial fingerprint in a bag containing detonators. Spanish officials sent a digital copy of the partial print to the FBI, which ran it through its 40 million fingerprints and came up with a match for Mayfield, in the system because of a teenage arrest.

Checking him out, the FBI found that Mayfield was a Muslim convert who attended the Bilal Mosque, a suburban temple also attended by some members of the Portland 7–convicted for trying to go to Afghanistan to fight with the Taliban against the United States. In fact, Mayfield, an attorney, had represented one of the Portland 7 in a child custody case. The FBI became extremely interested. But by April the Spanish were saying that the Mayfield match was “conclusively negative.” The FBI then sent a team to Spain–although reportedly never asking to see the original print–which reportedly returned saying the Spanish were satisfied, although the Spanish kept saying that they weren’t.

By late April the FBI picked up a rumor that the European media were about to go public with the Mayfield story, and decided to move. Telling Federal Judge Robert Jones that the fingerprint was a “100 percent match,” the FBI got a warrant to arrest Mayfield as a “material witness.” (This June the ACLU reported that in a sharp increase in the practice, seventy people have been detained as material witnesses since 9/11–all but one of them Muslim.) On May 6, 2004, Mayfield was taken to federal prison, where he spent the first week in lockdown.

As an attorney, he knew that the lack of actual charges against him was not reassuring. Mayfield asked his federal public defender three questions–Could he be sent to Spain? Could he be tried for the bombing? Could he be executed if convicted?–and was told that the answer to all three was yes. Except, as he kept telling people, it wasn’t his fingerprint. After he’d spent two weeks in custody, when the Spanish told the FBI they had now matched the fingerprint to an Algerian, the FBI finally agreed, released Mayfield and apologized.

A month later Mayfield was telling the Portland City Club, “We need to be safe and secure in our homes, not just from the bad guys but the government as well.” And he didn’t even know then just how much he needed such protection.

The FBI repeatedly insisted that the problem was just a simple, unfortunate law enforcement mistake, and had absolutely nothing to do with the new powers of the Patriot Act. But Mayfield was certain that his home and office had been the object of “sneak and peek” searches. It took until March 2005–almost a full year after the FBI had arrested, released and then apologized to Mayfield–for the Justice Department to admit: “Mr. Mayfield is hereby notified that the following property was seized, altered or reproduced during [Foreign Intelligence Surveillance Act] searches of his residence: three hard drives of three desktop computers and one loose hard drive were copied; several documents in the residence were digitally photographed; ten DNA samples were taken and preserved on cotton swabs and six cigarette butts were seized for DNA analysis; and approximately 335 digital photographs were taken of the residence and the property therein…. Mr. Mayfield is also hereby notified that he was the target of electronic surveillance and other physical searches authorized pursuant to FISA.”

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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Katrina vanden Heuvel
Editorial Director and Publisher, The Nation

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