Judge Rules Against Parts of Patriot Act in Terrorism Case

There’s more to this than a ‘mistaken fingerprint’…

PORTLAND, Ore. – Two provisions of the USA Patriot Act are unconstitutional because they allow search warrants to be issued without a showing of probable cause, a federal judge ruled Wednesday.

U.S. District Judge Ann Aiken ruled that the Foreign Intelligence Surveillance Act, as amended by the Patriot Act, “now permits the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment.”

Portland attorney Brandon Mayfield sought the ruling in a lawsuit against the federal government after he was mistakenly linked by the FBI to the Madrid train bombings that killed 191 people in 2004.
The federal government apologized and settled part of the lawsuit for $2 million after admitting a fingerprint was misread. But as part of the settlement, Mayfield retained the right to challenge parts of the Patriot Act, which greatly expanded the authority of law enforcers to investigate suspected acts of terrorism.

Mayfield claimed that secret searches of his house and office under the Foreign Intelligence Surveillance Act violated the Fourth Amendment’s guarantee against unreasonable search and seizure. Aiken agreed with Mayfield, repeatedly criticizing the government.

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By asking her to dismiss Mayfield’s lawsuit, the judge said, the U.S. attorney general’s office was “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.”

Elden Rosenthal, an attorney for Mayfield, issued a statement on his behalf praising the judge, saying she “has upheld both the tradition of judicial independence, and our nation’s most cherished principle of the right to be secure in one’s own home.”

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Mayfield, a Muslim convert, was taken into custody on May 6, 2004, because of a fingerprint found on a detonator at the scene of the Madrid bombing. The FBI said the print matched Mayfield’s. He was released about two weeks later, and the FBI admitted it had erred in saying the fingerprints were his and later apologized to him.

Before his arrest, the FBI put Mayfield under 24-hour surveillance, listened to his phone calls and surreptitiously searched his home and law office.

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Last year, the Justice Department’s internal watchdog faulted the FBI for sloppy work in mistakenly linking Mayfield to the Madrid bombings. That report said federal prosecutors and FBI agents had made inaccurate and ambiguous statements to a federal judge to get arrest and criminal search warrants against Mayfield.

http://www.msnbc.msn.com/id/20999950/

Now, by reading the sparse accounts of this story, you’d think that the FBI just pulled this guy out of thin air….until you read the report of the investigation.

Excerpts from the FBI investigation:

EXECUTIVE SUMMARY

In May 2004, the Federal Bureau of Investigation (FBI) arrested Brandon Mayfield, an Oregon attorney, as a material witness in an investigation of the terrorist attacks on commuter trains in trains Madrid, Spain in March 2004. Mayfield had been identified by the FBI Laboratory as the source of a fingerprint found on a bag of detonators in Madrid that was connected to the attacks. Approximately two weeks after Mayfield was arrested, the Spanish National Police (SNP) informed the FBI that it had identified an Algerian national as the source of the fingerprint on the bag. After the FBI Laboratory examined the fingerprints of the Algerian, it withdrew its identification of Mayfield and he was released from custody.

As a result of these events, the Office of the Inspector General (OIG) initiated an investigation into the misidentification, investigation, and detention of Mayfield. We sought to determine the causes of the misidentification and to assess the FBI Laboratory’s responses to the error. We also examined whether the FBI used the USA PATRIOT Act (Patriot Act) in connection with the investigation of Mayfield, whether the FBI targeted Mayfield because of his Muslim religion, and whether the FBI’s representations to the United States District Court in support of the requests for a material witness warrant and search warrants were accurate. In addition, we examined Mayfield’s conditions of confinement and whether they were consistent with the material witness statute.

I. Background
On March 1 1, 2004, terrorists detonated bombs on several commuter trains in Madrid, Spain, killing approximately 200 people and injuring more than 1,400 others. The SNP recovered fingerprints on a bag of detonators connected with the attacks and transmitted them to INTERPOL with a request that the FBI Laboratory provide assistance in identifying the fingerprints. On March 19, the FBI Laboratory’s Latent Print Units (LPU) identified a United States citizen, Brandon Mayfield, as the source of one of the fingerprints on the bag, referred to as Latent Fingerprint Number 17 (LFP 17). Mayfield’s fingerprints had been initially retrieved, along with others, as a potential match to LFP 17 based on a computerized search of millions of fingerprints in FBI databases. This automated search by the FBI’s Integrated Automated Fingerprint Identification System (IAFIS) generated a list of 20 candidate prints from the FBI’s Criminal Master File. An FBI examiner then began side-by-side comparisons of LFP 17 and the potential matches, one of which was Mayfield’s fingerprint. Following a detailed comparison of LFP 17 and Mayfield’s known fingerprint, the examiner concluded that Mayfield was the source of LFP 17.

This conclusion was verified by a second LPU examiner and reviewed by a Unit Chief in the LPU, who concurred with the identification.

As a result of this identification, the FBI immediately opened an intensive investigation of Mayfield, including 24-hour surveillance. The FBI determined that Mayfield was an attorney in Portland, Oregon. The FBI also learned, among other things, that Mayfield was a Muslim who had married an Egyptian immigrant, had represented a convicted terrorist in a child custody dispute in Portland, and had contacts with suspected terrorists. However, the FBI’s investigation did not turn up any information specifically linking Mayfield to
the Madrid train attacks.

As part of the investigation, the FBI obtained authority to conduct covert electronic surveillance and physical searches of Mayfield pursuant to the Foreign Intelligence Surveillance Act of 1978 (FISA). 1 The FBI’s electronic surveillance of Myfield began on (omitted) and included, among other things, monitoring (omitted). The FBI also conducted FISA-authorized searches of Mayfield’s law office on (omitted) and of the Mayfield residence on (ommited).

On April 13, the FBI learned that the SNP Laboratory’s examination of Mayfield’s fingerprints had yielded a “negativo” (negative) result. The FBI therefore dispatched an examiner to meet with the SNP in Madrid on April 21 to explain the basis of the FBI’s identification of LFP 17 as belonging to Mayfield. At the end of that meeting, the SNP Laboratory representatives said they would reexamine Mayfield’s fingerprints and LFP 17 in light of the FBI’s presentation.

In early May, the FBI began receiving media inquiries about a possible American suspect in the Madrid bombings case. The FBI became concerned that its investigation of Mayfield would become publicly known and that Mayfield might flee or destroy evidence. As a result, on May 6 the FBI and the Department of Justice (DOJ) attorneys applied to the United States District Court in Oregon for a warrant to detain Mayfield as a “material witness” pursuant to 18 U.S.C. § 3144. 2 The FBI and DOJ also applied to the Court for criminal search warrants for Mayfield’s home and office. The FBI submitted affidavits to the Court in support of these requests. On the basis of the representations in these affidavits, the Court issued the material witness warrant and the criminal search warrants.

The FBI arrested Mayfield on May 6 and executed the search warrants that same day, seizing evidence from his home and office. When Mayfield was brought before the Court on May 6, he denied that the fingerprint on the detonator bag was his and said he had no idea how it got there. The Court denied Mayfield’s request to be released to home detention and he was incarcerated at the Multnomah County Detention Center (MCDC) in Portland, Oregon.

On May 17, the Court appointed an independent expert to review the FBI’s fingerprint identification. On May 19, the independent expert concurred with the FBi’s identification of LFP i7 as being Mayfield’s fingerprint.

However on the same day, May 19, the SNP informed the FBI that it had positively identified LFP 17 as the fngerprint of a different person, an Algerian national named Ouhnane Daoud. At the request of the Portland prosecutors,the Court released Mayfield to home detention on May 20. After reviewing Daoud’s prints, the FBI Laboratory withdrew its identification of Mayfield on May 24, and the government dismissed the material witness proceeding.

The FBI initially provided a variety of explanations for the fingerprint misidentification, including the poor quality of the digital image of LFP 17, lack of access to the original fingerprint on the bag of detonators, and the similarity of LFP 17 to Mayfield’s fingerprint.

The Panel met at the FBI Laboratory in June 2004, and was provided information about the Mayfield case. Several panelists concluded that the initial examiner failed to conduct a complete analysis of LFP 17 before conducting the IAFIS search, which in turn caused him to disregard important differences in appearance between LFP 17 and Mayfield’s known prints. Several panelists cited overconfidence in the power of IAFIS and the pressure of working on a high-profile case as contributing to the error. Some panelists Pursuant to 18 U.S.C. § 3144, a court may order the arrest of a person if it appears that the testimony of the person is material to a criminal proceeding, and it is shown that it may become “impracticable to secure the presence of the person by subpoena.”stated that the verification was “tainted” by knowledge of the initial examiner’s conclusion. The panelists made recommendations for changes in the FBI Laboratory, including expanded documentation requirements and modified verification procedures.

On July 16, the FBI Laboratory issued a formal report identifying Daoud as the source of LFP 17.

In October 2004, attorneys for Mayfield filed a civil action against the FBI, DOJ, and several individuals. The complaint includes claims for violations of Mayfield’s civil rights, violations of the Privacy Act, and violations of the United States Constitution in connection with the FBI’s investigation and arrest of Mayfield. Based on our interviews and review of the evidence known to the FBI when it made the decision to seek emergency FISA authority, we concluded that the government likely would have proceeded with a FISA application even before the Patriot Act. 
Witnesses from the FBI and DOJ who worked on the Mayfield matter and had both pre-Patriot Act and post-Patriot Act experience stated that even before the Patriot Act, the government would have treated the Mayfield matter at the outset primarily as an intelligence case rather than a criminal case. All of the witnesses stated that the primary purpose at the outset of the Mayfield investigation was to collect foreign intelligence information and that the prospect of criminal prosecution of Mayfield was incidental. In addition, some of the witnesses expressed doubts that the government could have obtained the electronic surveillance information it sought had it attempted to use traditional criminal investigative methods.

We concluded that the Patriot Act did not affect the government’s decision to pursue FISA search and surveillence authority in this matter. Further, we believe that the government could have met the more stringent primary purpose standard that existed prior to enactment of the Patriot Act.

However, we found that the Patriot Act did affect the government’s dissemination of intelligence information about Mayfield. By dismantling the ‘wall” between criminal and intelligence investigators, the Patriot Act allowed the government to freely share intelligence information about Mayfield gathered in the FISA surveillance and searches with prosecutors and other criminal law enforcement officials. In addition, Section 203 of the Patriot Act allowed the government to share grand jury information with the intelligence community, some of which could not have been obtained and shared through intelligence methods prior to the Patriot Act.

B. The Role of Mayfield’s Religion in the Investigation
The OIG evaluated whether Mayfield’s religion improperly influenced the FBI’s actions in the field investigation and arrest of Mayfield. As discussed previously, the OIG concluded that the FBI did not initiate its investigation of Mayfield because of his religion. The FBI Laboratory examiners did not know Mayfield’s religion when they made the initial fingerprint identification. Similarly, when the Laboratory’s fingerprint identification was communicated to the FBI CTD and the Portland Division, neither entity knew about Mayfield’s religion. The FBI first learned of Mayfield’s religion only after it had opened a full field investigation of Mayfield to gather all intelligence available on him. Thus, we concluded that Mayfield’s religion played no role in the FBI’s decision to initiate a full field investigation of Mayfield.

In addition, we concluded that the field investigation of Mayfield was not improperly influenced by the FBI’s knowledge of Mayfield’s religion. Some government witnesses acknowledged, however, that Mayfield’s religion was a factor in the investigation. The FBI learned that the SNP believed the Madrid bombings had been carried out by radical Muslims. Thus, several DOJ and FBI witnesses stated that they expected to discover in investigating the case that the suspects would be Muslim. For example, a Portland Assistant United States Attorney (AUSA) called Mayfield’s religious beliefs a ‘mildly corroborating factor’. Other FBI witnesses said Mayfield’s religion was not a factor in the investigation, but that his contacts with other suspected terrorists were.

We concluded that the FBI’s field investigation of Mayfield was initiated because of and largely driven by the identification of his fingerprint on evidence associated with the train bombings, not by his religious beliefs. We believe the FBI would have sought covert search and surveillance authority irrespective of Mayfield’s religion. Moreover, we did not find evidence suggesting that the investigation was prolonged because Mayfield is a Muslim.

In our view, the FBI’s field investigation appropriately sought information about a subject who had been positively identified by the FBI Laboratory as having left a fingerprint on a bag of detonators found in Madrid. When the FBI Laboratory continued to declare that the fingerprint was Mayfield’s, we do not believe it was unreasonable for FBI agents to aggressively pursue this investigation.

Background

This report sets forth the results of an investigation by the Office of the Inspector General (OIG) into the misidentification, investigation, arrest, and detention of Brandon Bieri Mayfield, an Oregon attorney. Mayfield was arrested on a material witness warrant in connection with the terrorist attack that took place on March 11, 2004, on commuter trains in Madrid, Spain. On March 19, Mayfield was identified by the Federal Bureau of Investigation (FBI) Laboratory Division as the source of a fingerprint found on evidence from the Madrid attack recovered by the Spanish National Police (SNP). The FBI immediately initiated an intensive investigation of Mayfield, including 24-hour surveillance. Among other things, the FBI learned that Mayfield was a Muslim and had represented a convicted Muslim terrorist in a child custody dispute. On May 6, after receiving media inquiries about an American suspect in the Madrid case, the FBI arrested Mayfield on the material witness warrant.

On May 19, however, the SNP informed the FBI that it had identified an Algerian national, Ouhnane Daoud, as the source of the fingerprint. After receiving Daoud’s prints, the FBI Laboratory withdrew its original identification and the FBI apologized to Mayfield and his family. Mayfield was released from detention on May 20 and the material witness proceeding against him was formally dismissed on May 24.

Initiation of the FBI investigation of Mayfield
1. Notification of the Mayfield identification to the FBI’s
CTD and Portland Division Shortly after noon on March 19, 2004, the SSA at INTERPOL Washington sent an e-mail to the FBI CTD which stated that, with regard to the Madrid bombings investigation, the FBI LPU had “confirmed that one of the latents is a 12 Some examiners suggested to the OIG that if the Laboratory had known about the relative positioning of LFP i 7 and other latent fingerprints on the plastic bag, it might not have made the erroneous identification. We address this issue in Chapter Five of this report. 34 match to U.S. citizen Brandon Bieri MAYFIELD.” The e-mail referenced Mayfield’s date of birth and social security number, stated that Mayfield had served in the military from 1985 through 1994, and stated that he possibly resided in the Portland, Oregon area. FBI documents indicate that this was obtained by a ChoicePoint search of Mayfieid’s name. The e-mail contained no other information about Mayfield. Arthur Cummings, the Section Chief of International Terrorism Operations Section I (ITOS I) at FBI Headquarters, told the OIG that he received word of the Mayfield identification on March 19.14 Cummings said that he was initially concerned that Mayfield might be part of a “second wave” of terrorist attacks. He said he ordered a ‘full-court press” on Mayfield, meaning that he authorized the use of every lawful investigative tool on Mayfield, including 24-hour surveillance. An SSA in Continental United States 4 (CONUS 4), the CTD unit with geographical responsibility for Portland, Oregon, said he first learned of the Mayfield identification during the afternoon of March 19.
…..CONUS 4 ran Mayfield’s name through various databases and located Mayfield’s last known address in Portland.

After reading the e-mail from INTERPOL Washington, an analyst in CONUS 4 (referred to in this report as the CONUS 4 analyst) passed along the information in an e-mail to the FBI Portland Division. Responsibility for the Mayfield investigation was assigned to one of the International Terrorism, squads in the Portland Division, headed by an SSA (referred to in this report as the Portland SSA). The CONUS 4 analyst said she then checked FBI databases to see if the FBI had any investigations related to Mayfield. She said she found no FBI investigations directly related to Mayfield, but when she conducted a search of in FBI databases, she found that several to other suspected terrorists.  (ChoicePoint is a commercial provider of identification and credential verification services to businesses and government.)

The Portland SSA said that the Portland Division also ran Mayfield’s FBI databases and found (as did CONUS 4 that made (omitted). She also said that some members of the “Portland Seven” had attended this mosque.

The “Portland Seven” matter involved the federal prosecution in Oregon of seven individuals, six of whom had allegedly plotted to travel to Afghanistan and engage in combat against the United States armed forces on behalf of the Taliban and al Qaeda. To date, six of the seven have pled guilty to various charges stemming from their actions, such as conspiracy to levy war against the United States and money laundering, and have been sentenced. A seventh individual charged in the case was killed in Pakistan.

The Portland SSA said that when learned that that Mayfield attended the Biiai mosque, another mosque in the Portland area that was also attended by members of the Portland Seven. Thus, according to the Portland SSA and FBI documents, the FBI first learned that Mayfield was a Muslim after the FBI had been notified of the FBI LPU identification of Mayfield and had initiated the field investigation.

Witnesses and documents reflect that by the end of Friday, March 19, the FBI had Mayfield under 24-hour physical surveillance and identified Mayfield’s home and business addresses and telephone numbers. The FBI also learned that Mayfield was a lawyer with his own law practice, that he served in the military from 1985-1994, and that there was no evidence that he had recently traveled abroad. In addition, the FBI learned that Mayfield was a Muslim, was married to a naturalized United States citizen born in Egypt, and had three children. The government also began issuing numerous grand jury subpoenas.

On Saturday, March 20, the FBI learned from a database of court filings that Mayfield had previously represented Jeffrey Leon Battle, who was a member of the Portland Seven, in a child custody dispute. Battle pleaded guilty in October 2003, to conspiracy to levy war against the United States and was subsequently sentenced to an 18-year prison term.
On March 20, Mayfield was placed on the State Department’s Visa Lookout list and in the Department of Homeland Security’s Treasury Enforcement Communications system.

On March 23, at the request of the FBI the United States Attorney’s Office Office obtained court authorization for the FBI to (omitted).

The Portland SSA told us that sometime during the first week of the investigation, the FBI learned that Mayfield’s law practice consisted largely of immigration and domestic relations matters.

http://www.usdoj.gov/oig/special/s0601/final.pdf

Not only does Mayfield have connections to known convicted terrorists, but he joined their mosque, and provided their legal counsel. I would have surveilled his ass, too. In addition, the FBI would be smart to continue to keep Mayfield and the entire mosque he attends, in their database.

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