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BILL OF WRONGS -- THE EXECUTIVE BRANCH'S ASSAULT ON AMERICA'S FUNDAMENTAL RIGHTS

Chapter 5:  SNEAKING AND PEEKING

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. -- Fourth Amendment to the United States Constitution

There can be no doubt that behind all the actions of this court of justice, that is to say in my case, behind my arrest and today's interrogation, there is a great organization at work. An organization which not only employs corrupt warders, oafish Inspectors, and Examining Magistrates. ... And the significance of this great organization, gentlemen? It consists in this, that innocent persons are accused of guilt, and senseless proceedings are put in motion against them. -- FRANZ KAFKA, The Trial

You can't trade your freedom for security. Because in the end you lose both. -- BRANDON MAYFIELD, The Oregonian

Hanging on the wall of Brandon Mayfield's law office in a small suburban Portland, Oregon, strip mall is a framed copy of the Bill of Rights. It's not something Mayfield consults when dealing with the wills, custody disputes, and immigration work that pay the bills for his family of five. And it seems out of place among the degrees, diplomas, and certificates also hanging on the wall. Mayfield himself seems out of place when he appears in court. A slight, boyish thirty-eight, with short red hair and a trim beard that might be intended to add gravitas, Mayfield looks more like a law student than a lawyer.

You can't spend too much time with Brandon Mayfield without recognizing that his values are mid-western American. Native of Kansas, career as a military officer ended by a shoulder injury, shingle hanging out in Aloha, Oregon, framed copy of the Bill of Rights on the office wall. Clearly more Kansas than Kafka. But a careful reading of Kafka would have been useful in the trial Mayfield was beginning in May 2004. Maybe more useful than the criminal proceedings courses he took in law school. As useful as the ten amendments hanging on his office wall.

A material witness proceeding in federal court is not very common and was new territory for Mayfield. So he was uneasy sitting at the defense table when the bailiff ordered "All rise" and Judge Robert Jones walked into the courtroom.

The proceeding wasn't exactly familiar territory for the judge, either. The first thing he said as he took his seat at the bench was "Just a minute." Federal judges are all about decorum and authority. "Just a minute" is not how most trials get under way.

"Just a minute," Judge Jones repeated. "Who are all these people?"

"In the courtroom are five FBI agents -- four agents," said assistant U.S. attorney Pamala Holsinger.

"Are they authorized people?" asked the judge.

"They're all authorized, Your Honor," Holsinger said.

In this country, at least until recently, anyone who walks into a courtroom and sits quietly is "authorized" to be there.

Authorized people was a novel concept for Mayfield. He had limited experience in federal court and wasn't sure where the hearing was headed. He wasn't familiar with the first case the judge cited: United States v. Awadallah. But it had been decided only six months earlier, and Judge Jones told the clerk to get Mayfield a copy. "Since you're a lawyer," the judge said, "I think it's a good thing that you read this case."

Maybe Tom Nelson, the older attorney sitting next to Mayfield at the defense counsel table, had read Awadallah. At least Mayfield could follow the courtroom routine as the judge began plodding through the standard procedural steps -- asking about the search warrant, asking if the proper warrants were left in the seized vehicles, asking if the house and office searched were left in order. "We don't want to have some claim of some drawer [sic] was pulled out and left all over the floor and that sort of thing."

Mayfield felt a little better when the judge praised his service to his country "as an enlisted man and an officer." But he was still nervous and uncomfortable in the blue suit he had never before worn to court.

When it was finally his turn to address the judge, Brandon Bieri Mayfield adjusted his leg irons and gave it his best shot. "That's not my fingerprint, Your Honor," he said. At the moment, he assumed the truth was the best defense and might even set him free.

Here's why a reading of Kafka might have been useful: Brandon Mayfield wasn't charged with a crime. He wasn't a criminal defendant. Yet according to what the judge was telling him, he could be detained indefinitely. That was what Awadallah touched on -- along with prosecution for perjury should a material witness perjure himself, intentionally or unintentionally.

Mayfield might be released if he would testify under oath about the crime. But he knew nothing about the crime. Then again, even if he agreed to a deposition or testimony before a grand jury, he might not be released. He was caught in a judicial web similar to the one that had ensnared the protagonist of Kafka's novel. Mayfield didn't know the charges against him, yet his freedom depended on what he said. He could be held indefinitely if he didn't talk.

"These proceedings are closed; that is, they are secret," the judge said. A locked-down court. No unauthorized persons. No press. No public witnesses to the hearings. Halls and elevators cleared when Mayfield was shuttled from the Multnomah County detention center over to the courtroom in the modern Mark O. Hatfield Justice Center in downtown Portland. As the case got under way, Mayfield was even provided a pseudonym.

There was also the issue of the death penalty. The crime the FBI agents and U.S. attorneys were trying to pin on Mayfield was punishable by death. Even if he wasn't yet charged, Brandon Mayfield knew that he could be facing execution. As did Tom Nelson. A proper defense for the crime federal prosecutors were investigating could cost as much as a million dollars and put all of Nelson's other clients on hold. And Nelson wasn't a criminal defense lawyer. Yet he couldn't let a friend walk into a federal court and represent himself when he possibly faced execution.

Let us digress to remind readers that both authors are from Texas, where executions are so routine that, by holding office for six years, Governor George W. Bush set records you have to travel to China or Iran to match. Yet not even in Texas do we conduct closed trials when a person's life is in play. And we avoid holding a man as a witness against himself.

***

Brandon Mayfield had been surprised when two FBI agents walked into his office on a May morning in 2004. There had been some warning, even if he and his wife, Mona, had misread it. While Mona and Brandon Mayfield were working at the law office, and the three kids were at school, odd things were happening in their house. They found blinds readjusted at the end of the day. Dead bolts the Mayfields never locked were locked when the family returned home in the evening. Footprints of odd shoes were all over the carpets, though the Mayfields don't wear shoes in their house. Even school papers the children left at home were disturbed.

Brandon Mayfield called the local police, who turned up nothing. But the FBI was the last thing on his mind. There was no reason for anyone to investigate him. Yet federal agents had been in his house for weeks, planting wiretaps, downloading computer files, taking hundreds of photos. If the local police knew, they couldn't share what they knew with Mayfield.

The sneak-and-peek provisions of the USA Patriot Act allow secret, delayed notification warrants to search homes, offices, and electronic files. FBI agents had been working the Mayfield home, even if they forgot that the sneak-and-peek provisions of the Patriot Act require agents to be sneaky. Mayfield still didn't get it when the two agents walked into his office and told him they had some questions to ask him.

"If you have questions, put them in writing. I'll review them and might get back to you," he told the agents. Then he was frisked and handcuffed. At his first appearance in court, he told Judge Jones that the officers were kind enough (he vaguely knew one of them) to cuff his hands in front so the handcuffs wouldn't be so visible when he walked out of his office. He told the two agents that if he were seen walking out of his office in handcuffs, his law practice would be destroyed. This story is going to get out, one agent said as he eased Mayfield into the Ford Explorer.

"The media is right behind us."

"Brandon, think long and hard," the man playing the bad cop said once they were in the Explorer. "You remember how the Muslim brothers stood up for Mike Hawash? Well, they are not going to be there for you." Maher "Mike" Hawash was one of the Portland Seven, a hapless group of local jihadists who set out to join the Taliban, never made it to Afghanistan, yet all ended up serving long terms in federal prison.

Two months before Mayfield was picked up, a series of bombs on commuter trains in Madrid had killed two hundred people and injured two thousand more. The Spanish National Police had found latent fingerprints on a bag the terrorists had left behind. One of them was analyzed by the feds and determined to be Brandon Mayfield's right index fingerprint, which had been on file since he was commissioned as an officer in the Army. The agency's forensic lab at Quantico, Virginia, reported that three fingerprint specialists had examined the print and reached the same conclusion.

To support their single-digit theory, veteran FBI agent Richard Werder built a circumstantial case against Mayfield that focused on the Portland Seven.

"Jeffrey Battle along with other co-conspirators, Patrice Lumumba Ford, Ahmed Bilal, Muhammad Bilal, Habis Al Saoub, and Maher Hawash after September 11, 2001, tried but failed to travel to Afghanistan to fight for Al-Quaida [sic] and the Taliban against U.S. Forces in the region," wrote Agent Werder in the affidavit the agency used to justify breaking into Mayfield's home and law office.

Battle and others, according to the affidavit, "attempted to get into Afghanistan through Pakistan in order to martyr themselves on the battlefield of Afghanistan. The group made it as far as western China and were unable to reach Afghanistan because they were unable to obtain visas to enter Pakistan." Battle was the most rhetorically over-the-top of the Portland Seven and referred to Americans as "kaffirs," or nonbelievers. Mayfield had once represented Battle in a child custody suit. So Mayfield's role in Battle's child custody case linked him to a group that might have been linked to the terror cells in Spain -- even if anyone watching the prosecution of Portland's hapless jihadists would quickly conclude that al-Qaeda they were not. And they had traveled to China, not Spain.

Reading Agent Werder's affidavit would take your breath away if the guy weren't so plodding in plodding to his preordained conclusion.

Werder addresses Mayfield's travel: "The investigation has thus far revealed no record of travel in the United States in the name of Brandon Bieri Mayfield. Checks through the National Tracking System going back one year don't turn up any airline travel or border crossings by Brandon Mayfield. State Department records indicated Mayfield's passport expired October 20, 2003, and he is not on record for renewal. To date, the FBI had not identified any aliases used by Mayfield."

That was Point 22 of the affidavit. In Point 29, Agent Werder digs deeper and finds what "may be relevant evidence of contacts between Mayfield and associates that may have traveled to Madrid, Spain." What follows requires careful reading because the logic is so nuanced: "Since no record or travel documents have been found in the name of Brandon Bieri Mayfield, it is believed Mayfield may have traveled under a false or fictitious name, with false or fictitious documents. It is also believed that if Mayfield did not travel to Spain utilizing false identification documents, that he associated with someone that played a role in the March 11, 2004, terrorist act in Spain."

How could any federal judge resist such an argument?

Agent Werder used the powerful investigative arm of the FBI to establish that Brandon Mayfield had not traveled abroad. Then he explained how the absence of any record of foreign travel might in fact be proof of foreign travel. Then he closed the final loophole to secure his request to search Mayfield's home, office, bank accounts, client files, storage facilities, home and office computer files, safe-deposit boxes, and family cars. And to seize all of his files. Having proved that Mayfield had not traveled abroad but then explained how he probably did, Agent Werder concluded that none of this mattered: "If Mayfield did not travel to Spain utilizing false identification documents, it is believed that he associated with someone that played a role in the March 11, 2004 bombing." The FBI had no idea who that "someone that played a role" was, Werder admitted in the following sentence.

"A real peach" is how Tom Nelson described Werder's affidavit.

"A hodgepodge of irrelevant and unconnected circumstances," according to the federal public defenders who replaced Nelson.

In the political climate after September 11, 2001, practice of the Islamic faith was almost criminalized. The large concentration of Muslims in Portland and across the river in Vancouver, Washington, lived under a cloud of suspicion. By September 2001, Portland already had survived what many of the city's residents considered a close brush with Islamist terrorism. The Algerian "Millennium Bomber" Ahmed Ressam was arrested at the Canadian border just five hours north on I-5-with explosives and a plan to blow up the Los Angeles airport -- and federal antiterrorism money flowing into the region heated up the law enforcement climate. Then came sensational front-page accounts in The Oregonian of Farid Adlouni's business relationship with Wadih El Hage -- "a person identified as the former personal secretary of Usama Bin Laden." Adlouni was charged with nothing but his trial in the press was followed by a spectacular staged and ultimately meaningless arrest of a Muslim cleric in the Portland airport and the overblown trial of the Portland Seven.

Suddenly anyone dressed in anything that deviated from traditional American attire was suspect. Portland being Portland, cross-dressers got a walk. But we can safely observe that by the time FBI agents started digging through the drawers in Brandon and Mona Mayfield's bedroom, bugging his living room, and photocopying Sharia Mayfield's homework, Portland, Oregon, was not a good place for Muslims.

The Mayfields, you see, were Muslim.

***

The constitutional right that would protect a person, his home, and his property from unreasonable searches and seizures began with John Adams in Massachusetts and was completed by James Madison in Virginia twenty years later. It was the creation of a new right, not the expansion of an existing right. As the constitutional scholar Leonard Levy writes, the Fourth Amendment enshrined in the Constitution the appealing fiction that in England a man's home was his castle. That right barely existed in England. Nor did it exist in England's American colonies: "Reasonable search and seizure approximated whatever the searcher thought reasonable," writes historian William Cuddihy. Colonial customs agents used writs of assistance to seize or tax "uncustomed" goods or to enter homes to inventory liquor, salt, candles, soap, glass, and whatever else was taxable. They dug through barns and root cellars looking for taxable goods, and when they didn't find what they wanted, they put devout believers under oath and asked them what spirits they had consumed over the past year -- then taxed them for them. A man's castle was no safer from unreasonable search in colonial America than in Brandon Mayfield's suburban Oregon.

A young John Adams got interested in the topic when he rode into town from Braintree to watch James Otis argue a case in superior court. Open-ended writs that allowed customs agents to enlist local magistrates to search warehouses and homes weren't a big hit in Boston. When authorities in London reauthorized the writs after the death of George II, in 1760, sixty-two Boston merchants rebelled and James Otis took up their case.

James Otis, Jr., belonged to an established Massachusetts family, was ten years older than Adams, had wasted two years at Harvard before getting serious about his studies, graduated after seven years, and spent two more holed up in his family's Barnstable home reading the classics. He was familiar enough with the classics to toss off a line of Virgil: Flectere si nequeo superos, Acheronta movebo -- "If heaven I cannot bend, then hell I'll stir." In Boston's Town Hall in 1761, Otis was raising hell. He had walked away from his job as advocate general for the Vice Admiralty Courts, gone native, and was pro bono counsel for Boston merchants fighting writs of assistance. "In such a cause, I despise all fees!" Otis said. He turned a fight over tax collection into an eloquent statement of a fundamental principle that didn't yet exist. "A man's house is his castle," Otis said to the judges. "And whilst he is quiet, he is as well guarded as a prince in his castle."

John Adams was a young country lawyer from down the pike in Braintree. "Otis was a flame on Fire!" Adams wrote years later. Flame or not, he lost his case. Yet Adams later wrote that the fight against the writs of assistance was the "commencement of the controversy between Great Britain and America." When Massachusetts included a protection against search and seizure in its state constitution in 1780, James Otis was moving John Adams's hand:

Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, to attest one or more suspected persons, or seize their property, be not accompanied with a special designation of the persons or objects of search) arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws.

When James Madison set out to persuade the U.S. Congress to adopt a Bill of Rights, he found the source for his Fourth Amendment in the state constitution of Massachusetts. Madison's draft included broad provisions and substituted a muscular imperative for Adams's wimpy "ought." A House committee deleted "unreasonable searches, and seizures" -- the heart of the amendment. Congressman Elbridge Gerry of Massachusetts reinserted the phrase because he thought it had been deleted by mistake.

There was far more to the history of the Fourth Amendment than a fight with tax collectors, even if John Adams latched on to the idea when Boston merchants turned on the king's tax men. Agents of the Crown frequently used searches to suppress political dissent, tossing the offices of political pamphleteers and using their private writings to declare them guilty of sedition. On one occasion during the Revolution, colonial authorities seized the political papers and records of forty of their fellow Pennsylvanians, who were arrested and deported without trial for being disloyal to the American cause. Colonial authorities said the attack on their countrymen was necessary because the country was "at war."

"At war" was the justification the feds used in Oregon -- 225 years after American colonial authorities in Pennsylvania expelled a bunch of questionable Quakers with no regard for their civil liberties. Like his forebears in Pennsylvania, FBI agent Richard Werder considered himself a foot soldier on the front lines of a war -- in this case the Bush administration's War on Terror.

"If the world that is reflected in Richard Werder's affidavit exists, we're really in trouble," said Tom Nelson, who eagerly turned Mayfield's case over to federal public defenders with the resources to put on a proper defense.

We're really in trouble.

Werder's affidavit included more than convoluted logic about Brandon Mayfield's travel. It is a long bill of particulars that lacks the particulars that justified locking up Brandon Mayfield. Brandon Mayfield is married to Mona Mayfield, a.k.a. Mona Mohamed, a naturalized American citizen born in Egypt, according to Werder's affidavit. Mona Mayfield's cell phone was used to place one call to Pete Seda, in Ashland, Oregon. Seda, also known as Perouz Sedaghaty, had been U.S. director of the Al-Haramain Islamic Foundation, a charity "headquartered in Riyadh, Saudi Arabia, with offices throughout the world. Six offices of the AHIF have been designated as specially designated terrorist organizations by the United States Department of the Treasury.... This designation did not include the AHIF offices in the United States."

"While under surveillance, according to Agent Werder, Mayfield had been seen driving to the Bilal Mosque in Beaverton, Oregon. "On several occasions" each day.

Mayfield's law practice was advertised in the Business Link Directory, owned by Farid Adlouni in Portland. Adlouni had once been in business with Wadih El Hage, the "person identified as the former personal secretary of Usama Bin Laden," convicted in New York of conspiring to murder U.S. nationals and committing perjury regarding the U.S. embassy bombings in Kenya and Tanzania in August 1998. When questioned, Adlouni admitted that Business Link was a "Muslim Yellow Pages."

Much of Werder's affidavit reads like a halal version of Six Degrees of Kevin Bacon. Mayfield is suspect because he associated with individuals who associated with individuals who associated with other individuals.

The FBI was in transition from an agency that solved crimes already committed to an agency that prevented crimes that might happen -- a necessity in light of what occurred on September 11, 2001. Yet that transition was a dangerous moment for people of one faith. Take the Werder affidavit and substitute "church." Or "synagogue." Substitute "Christian Business Guide" with the stylized fish on the cover. Or "Jewish Yellow Pages." Substitute "Bible" or "Torah." Substitute "Family Research Council" or "American Israel Public Affairs Committee." Fill in the blanks in the Werder affidavit with Christian or Jewish references in place of Islamic references and the American public would rise up in anger.

Brandon Mayfield went to jail on a religion rap.

***

Of course, there was the fingerprint. And the FBI.

We're Americans. We read newspapers. We read magazines. Mostly, though, we watch TV. So we know that our Federal Bureau of Inspection has no peers. Isn't the FBI the gold standard in criminal forensic science?

We wonder.

Brandon Mayfield's life was on the line when he was escorted into federal court in Portland. So it's not as if he was an unbiased observer. But in his attempt to defend himself in court, he pointed out some serious flaws in the forensic case the government was building against him.

"We are talking about a fingerprint that was provided by the SP, the Spanish Police," Mayfield said. "That was a photograph of a latent print on this alleged bag.... There is a photograph. We don't have a chain of evidence. It's not the [American] federal police that conducted the investigation gathering of this alleged bag. It was provided to somebody here. I read the affidavit. There is some conflict about their matching fingerprint."

Mayfield was scoring on technical points. And, like the rest of us, he assumed the FBI was thorough, competent, and honest. If only the right FBI agents could get a good look at the hard evidence, he believed he would be cleared.

But Mayfield's problem wasn't so much the flawed chain of custody. It was the bad link at the end of the chain, in Quantico. The Spanish National Police found a backpack full of detonators in a van used by the terrorists. They forwarded the prints to the FBI. The boys at Quantico ran the prints through their database and came up with twenty potential matches.

The potential matches, Results 1 through 20, were sent to the Latent Fingerprint Unit at Quantico. Along with the information that Latent Fingerprint 17 belonged to a Muslim. The fingerprint allegedly belonging to Mayfield was the only one with a religious affiliation. These guys must have studied the Saturday Night Live police lineup skit that put John Belushi, Tom Schiller, and Chevy Chase in line with Richard Pryor in handcuffs. Mayfield was a Muslim living in a city considered by many, certainly many in the agency, to be the national capital of radical Islamic extremism. Like Richard Pryor, Print 17 stuck out like a sore thumb.

The "Muslim factor" was not the only flaw in the FBI's fingerprint process. Consider. The analysis of the Muslim print from Spain began with a senior FBI examiner who received an image file of Print 17, along with the nineteen other possible hits from the database. He concluded that the Spanish print matched Mayfield's right index finger and forwarded his report to a private consultant who worked as a "verifier." The verifier -- a former agent who had been reprimanded at least three times for misidentifying fingerprints while he was at the agency -- verified what was sent to him by the senior examiner. But he was verifying the senior examiner's conclusion, not conducting his own analysis of a fresh set of prints.

The conclusion of the two analysts was then sent to the unit supervisor. He knew he was looking at a Muslim fingerprint that had been matched by two examiners. If the FBI was slacking on quality control, they were close enough for government work. Latent Fingerprint 17, through a process lacking in independent evaluation and corrupted by the knowledge that the print had a religious affiliation, was conclusively matched with Brandon Mayfield's right index finger.

Mayfield wasn't the only one to get the finger.

Back in Madrid, the Spanish National Police had done their own analysis and reached their own conclusion. Twenty-six days before two FBI agents walked into Brandon Mayfield's law office, cuffed him, and took him to jail, the Spaniards informed the FBI there was "no match." The FBI promptly dispatched an agent (who did not speak Spanish) to Madrid to convince the Spanish National Police that they were wrong. The Spaniards stood by their analysis.

Not to let forensic facts stand in the way of an important investigation, the FBI took its analysis of LFP 17 to a secret Foreign Intelligence Surveillance Act (FISA) court in Washington, D.C., and obtained the secret warrant that got them into the Mayfield home. Then, with bugs planted in the house and big-footed agents stomping the carpets and locking the wrong doors, agents juiced up the language enough to persuade a federal judge to open the doors of Brandon Mayfield's bank account and law office.

According to Agent Werder, the three FBI print analysts considered "LFP #17 a 100% positive identification." The affidavit mentioned that "preliminary findings" of the Spanish police "were not consistent" with the FBI's analysis. In fact, the final conclusions of the Spanish National Police completely contradicted the FBI findings.

Something must have been lost in translation. In the end, Werder wrote, the Spanish police "felt satisfied with the FBI laboratory's investigation." The forensic investigators back at SNP headquarters in Madrid must have been saying: Que gilipollas! (What dumbshits!)

And somewhere J. Edgar Hoover must have been turning over in his closet.

***

If it was Mayfield's misfortune to be a Muslim investigated by the FBI in Portland, at least the city is home to several of the best federal public defenders in the country. "Quality of public defenders varies," said Tom Nelson. "Brandon had excellent representation with Steve Wax." Wax, the senior public defender in the city, has been a criminal defense lawyer for twenty-six years. He is dispassionate, erudite, cautious, and attentive to detail. Sitting in his seventeenth-floor office in front of a huge window overlooking the Willamette River, he described some of the difficulties in representing Brandon Mayfield.

To begin with, Mayfield was not a defendant. But he could make himself one if he said the wrong thing. Wax didn't want his client testifying before a grand jury, because there is no right to counsel when appearing before a grand jury. An innocent mistake, contradicting something you previously said, misstating something, can be construed as perjury. Defense attorneys know that grand juries can be "perjury traps." Asked if he believed Mayfield was innocent, Wax dismissed the question. "Sometimes guilt or innocence is irrelevant in a criminal proceeding," he said. "We wanted to keep [Mayfield] in the material witness box and out of the defendant box."

The material witness statute is an odd duck. Traditionally it has been used to detain one party to preserve his testimony against another party. It was useful in prosecuting mobsters because one member of a crime syndicate could be detained (and protected) until he testified against another. The process was straightforward. Witness A was detained to testify against Subject B. Then Witness A was released -- sometimes into the Federal Witness Protection Program (which in Spanish is called Arizona).

As a U.S. attorney locking up mobsters in New Jersey, Bush's homeland security czar, Michael Chertoff, had devised a creative use of the material witness statute. He detained suspects and held them as witnesses against themselves. Witness A would be sweated until he testified against Witness A. It's as novel as it is frightening. Attorney General John Ashcroft, who was never too prissy about rights of the accused, loved it. Make a man a witness against himself and watch him squirm until he talks.

Chertoff, who as assistant attorney general was one of the architects of the Patriot Act, believes the government gets a bang for its buck with material witness detentions. "Bear in mind that you get not only testimony," he told a Senate committee. "You get fingerprints, you get hair samples, so there's all kinds of evidence you can get from a witness.

"Are we being aggressive and hard-nosed?" Chertoff said at his confirmation hearing. "You bet. But let me emphasize that every step we have taken satisfies the Constitution and federal law as it existed both before and after September 11."

"We're in a time of war," Chertoff had warned the American Bar Association two years earlier, when he was a federal appellate judge. That war had arrived in Oregon. It was much larger than Brandon Mayfield. In September 2002, eight months before Mayfield was detained, armed agents surrounded Portland's most prominent Muslim cleric. The FBI had flown in its top brass from D.C. and shut down a Portland airport concourse to arrest the leader of the As-Saber Mosque in southwest Portland. They had obtained a warrant for the arrest of Sheikh Mohamed Abdirahman Kariye several days earlier and could have picked him up at home. Instead, they arrested him in the airport as he was leaving the country (which they already knew was his intent). They claimed the popular religious leader had traces of explosives in his luggage and was carrying "a large amount" of money.

Kariye was locked up for five weeks until explosives tests came back a false positive. The thirty thousand dollars he had on him was money for him and his sons to get established in the United Arab Emirates until he settled into a teaching job he had accepted there. The different birth dates on his Social Security card and immigration application were explained by his attorney. In his native Somalia, Kariye had lied about his birth date to avoid conscription by the communist government. He was working on behalf of Islamic Resistance -- the guys the United States backed at the time. He made the mistake of stating his correct birthday on his Social Security card application.

Kariye's mosque had been infiltrated by an undercover FBI asset. His sermons and private conversations had been taped. A surveillance plane had flown over his mosque. His associates had been tailed and questioned. Yet the government couldn't make a case against him. "At that point, the government should have said, 'We're sorry. You can go,'" said his lawyer Stanley Cohen. "But U.S. attorneys don't think like that." They prosecuted Kariye for lying about his date of birth on his Social Security application. And for understating his income so his children could qualify for the Oregon Health Plan. He spent five weeks in jail.

After sinking a quarter of a million dollars in an investigation and prosecution that netted $5,109 in restitution, a $1,000 fine, and a five-year probated sentence, a federal prosecutor said with a straight face: "At least we established that one of the state's most prominent religious leaders had lied about his income." He forgot to mention conflicting birth dates on two federal forms.

***

Steve Wax didn't want the U.S. attorneys to begin a prosecution they couldn't walk away from. Nor did he want his client to testify before a grand jury. At least not until he knew what the government had against Mayfield. That was another problem. Courts are level playing fields because each side has access to the evidence the other side does. Those of us who couldn't get into law school learned that from watching My Cousin Vinny, in which the hapless defense attorney Vinny Gambini is stunned when a prosecutor hands over the case file of Gambini's murder defendant. "It's called disclosure, you dickhead. He has to give it to you," says his girlfriend, Mona Lisa Vito.

After 9/11, the playing field is no longer level. Steve Wax didn't have the discovery process Vinny Gambini did. Some of the government's evidence against Brandon Mayfield was gathered by a secret FISA warrant. Some of what the government had was obscured in the redacted sections of the Werder affidavit. And additional secret information was in the U.S. attorneys' files. Because Mayfield was a material witness and not a defendant, the rules of discovery didn't apply.

To complicate matters, another expert witness in San Francisco had agreed with the FBI on Latent Fingerprint 17. Wax had paid the expert witness with public defender's funding, so the defense would "own" his report. But the finding made it more difficult for Judge Jones to release Mayfield, who asked to be allowed to go home and work while wearing an electronic ankle bracelet.

Nothing was working for Mayfield. The proceedings in the courtroom and everything about them were supposed to be secret. But somehow Mayfield's arrest as a material witness, his identity, and the terrorist crime his government was trying to hang on him were big news. The day before he was arrested in Oregon, the Department of Justice decided to leak his story back in Washington. The Justice Department had turned Mayfield's arrest into a public relations victory. Reporters in Washington were all over the secret proceedings. Tom Nelson's office took a call from Newsweek's Michael Isikoff while Mayfield was making his first appearance before the judge. As did Judge Jones. On the night of the arrest, Isikoff told the story on Nightline. As the world's attention turned toward Portland, Mona Mayfield and her three children were trapped in their house, where TV stations set up satellite trucks on the street and reporters stormed the house any time she stepped in front of a door or window.

"Some time ago, some weeks ago, Spanish authorities presented the FBI with some evidence showing that the fingerprints found on a bag containing bomb material connected with the Spanish bombing was, in fact, from a Portland, Oregon, lawyer, a man by the name of Brandon Mayfield. He's an American convert to Islam," Isikoff said.

"He had popped up in connection [with] the Portland Seven case. That is the case of the seven individuals charged with plotting to go to Afghanistan after September 11 to fight for the Taliban against U.S. soldiers. Mr. Mayfield had represented the interests of one of the main defendants in that case....

"But this was taken extremely seriously by the FBI. He's been on around the clock surveillance.... We learned about it from law enforcement sources."

Agence France-Presse had the story, from an official and anonymous source in Washington. The Oregonian had the story, attributed to a law enforcement official. Mayfield's hometown paper in Wichita, Kansas, had the story the day after his arrest, attributing their report to two senior law enforcement officials.

Justice Department sources weren't just leaking. They were running a media campaign that put Mayfield at risk when he was moved out of solitary confinement and into the general jailhouse population, where his fellow inmates recognized the "terrorist" from the TV news reports they watched in jail.

"How dare they?" asked Wax, the only time the cautious lawyer became animated during an interview. "How could they do this in a secret proceeding with a man who had not been charged?"

Courtroom TV dramas -- from Perry Mason to Boston Legal -- are built around the premise that there is drama in the courtroom. Dramatic moments in court are, in fact, rare. In Brandon Mayfield's secret detention, the dramatic moment was stunning. On the afternoon of May 20, 2004, two weeks after Mayfield first appeared in court, U.S. attorney Charles Gorder called to request a meeting with the judge and Mayfield's attorneys. Gorder told the judge the Spanish National Police had arrested an Algerian whose fingerprint matched Latent Print 17. Steve Wax didn't recall the judge barking out any order. "He almost said it with his eyes," Wax said. All parties were in court for Mayfield's release the following day.

"Basically," Gorder said at the May 20 hearing, "the Spanish government has informed us they have identified print No. 17, which the FBI lab and the Court expert had matched to Mr. Mayfield's prints, as belonging to another individual in Spain.... In light of this information, it is our request that Mr. Mayfield be released pending further proceedings in this material witness proceeding." It turned out that the print was not even an index finger, though the FBI match described it as a 100 percent match of Mayfield's right index.

Steve Wax said that the system worked. And that Judge Jones had moved with "lightning speed," considering that federal prosecutors had hard forensic evidence they were using to convince the court that they had an international terrorist in custody. But Mayfield's house had been searched in what seemed like a clear violation of the Fourth Amendment. He had been detained without just cause. Private case files of his clients -- many of them Muslims with an understandable fear of their government -- had been reviewed by the government and were photocopied and retained by the FBI. Mayfield had only spent two weeks in jail, but during that two weeks his law practice began to unravel.

Even the Mayfield kids had been involved. "Spanish documents" the agents had used to link Mayfield to Spain were his son's Spanish homework. The Internet links to Spanish websites were also Spanish assignments and Mona Mayfield's search for a program where her kids might study abroad. What the FBI described as Mayfield's radical quote supporting the Taliban was two sentences from his ten-year-old daughter Sharia's journal. Even if  Mayfield had shouted it out in Portland's Pioneer Courthouse Square, it hardly seems like probable cause. Sharia had written, "Who is America to bomb the Taliban because they don't like Afghanistan's law? All I say is that Americans should think twice about the example you are setting for the rest of the countries."

***

What would have been an insult to Mayfield, had it not provided him complete vindication, was the FBI's admission that their copy of the fingerprint from Madrid was in fact "of no value for identification purposes."

Mayfield continues his daily prayers at the Bilal Mosque, also known as the Intel Mosque. Many of the men who worship there are Intel engineers from Pakistan, India, and Southeast Asia. You know, the guys who are making technological progress happen in this country.

"Brandon Mayfield was fortunate," his friend Tom Nelson said. "His detention was based on one piece of hard evidence, which his attorneys could challenge. It's much harder for people detained as material witnesses on circumstantial evidence, which is harder to disprove."

"Our government took a dump on the Bill of Rights," Brandon Mayfield told a reporter after he was released. The comment embarrassed his daughter, Sharia.

***

POSTSCRIPT

Released from jail, with his law practice damaged and his family traumatized, Brandon Mayfield decided to pursue a day in court on terms he would better understand. He retained Gerry Spence, a legendary Wyoming trial lawyer, and filed a joint and several liability suit against the agents of government who had targeted him. Named as defendants were Agent Richard Werder and the latent print examiners Terry Green, John T. Massey, and Michael T. Wieners, who together make a compelling argument for outsourcing all FBI forensics to Spain. Also named were John Does I through X, in case any other responsible parties were turned up in discovery. Mayfield's first break came when the case was moved from federal court in Portland to Eugene, because the judge to whom it was assigned in Portland had once disparaged Gerry Spence before a group of lawyers attending a continuing legal education session. The case was reassigned to Ann Aiken, a thoughtful, evenhanded judge appointed to the federal bench by Bill Clinton.

Spence set out to look at the FBI's fingerprint analysis and the honesty of the agents involved in the case. "From the newspaper, it was clear to us that somebody was lying because the FBI had told the federal judge here in Portland in a sworn affidavit that the Spanish police agreed with the fingerprint match, yet [the Spanish police] were being quoted in The New York Times that they never said that," said Elden Rosenthal, an Oregon lawyer working with Spence. Mayfield's attorneys also set out to prove that the government had leaked information to the press and abused the Privacy Act. And they began building a challenge to some of the provisions of the Patriot Act.

Mayfield never made it to court.

When the judge overruled the government's motion for summary dismissal, the FBI folded. The government agreed to a $2 million settlement and an apology, though denying that Mayfield was targeted because he was a Muslim. In settling the case, government lawyers admitted that what had happened to Mayfield was "deeply unsettling." Anyone looking at the general contours of the case could understand why the agency couldn't open its files to lawyers.

"I think they settled the case because we were about to take in-depth discovery about what they do and how they do it and who may have violated Privacy Act provisions, which carry severe penalties," said Rosenthal.

The FBI always claims it has never misidentified a fingerprint, and prints are often the unassailable bedrock evidence upon which government lawyers prove out their cases. Exposing that process to the harsh light of a federal courtroom would have provided defense lawyers with grounds for challenging one of the agency's most basic tools. So the government settled.

Remarkably, Mayfield and his attorneys preserved their right to challenge the Patriot Act provision that opened the doors of his house to secret search by the FBI. The Patriot Act had so lowered the standard required to secretly enter an individual's home that agents could wink and nod and a judge would issue a warrant. Under FISA, the Foreign Intelligence Surveillance Act, federal agents could secretly wiretap someone's home only after convincing a FISA court judge that the target is an agent of a foreign power and the primary purpose of the wiretap is to gather intelligence. Under the Patriot Act, gathering intelligence only has to be a "significant purpose." Before they finished their business, the agency had taken three hundred photos, DNA samples, hair samples, and cigarette butts and kept the family -- perhaps in their most intimate moments -- under electronic surveillance. Mayfield is going back to court to argue that if the FBI is going to use the Patriot Act to conduct domestic criminal investigations, the bureau must comply with the search and seizure provisions of the Fourth Amendment.

Even before the suit was settled, the FBI was forced to admit that in its investigation of Mayfield it had for the first time used FISA and the sneak-and-peek provision of the Patriot Act to spy on an American citizen in his home.

Gerry Spence wants that provision declared unconstitutional. He wants the government to go to court and make its case before  a judge if it plans to plant bugs in a citizen's home or office. He wants former AG John Ashcroft to pay damages for his policies. Speaking to reporters on the day of the settlement, Spence suggested why Americans should be concerned with the Patriot Act: "We have some secret agents who file secret papers that we can never see. And they're filed in a secret proceeding, and no right is given to the citizens. And out of those secret papers comes a secret order. And then people come secretly to your house, and they secretly break into your house. And they secretly put in listening devices. So that secretly the entire lives of these people become the property -- not of us, not of the parties, not of the citizens -- but our private lives become the property of the United States government."

It reads like a passage right out of Kafka.

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