A train bombing. A mistaken fingerprint. Secret surveillance. Brandon Mayfield and the problems to come for the Patriot Act

The Oregonian | December 5, 2006
DAVID SARASOHN

In the large Senate Judiciary Committee hearing room, Sen. Patrick Leahy, D-Vt., was visibly unhappy with what he was hearing from defenders of the USA Patriot Act.

"I'm thinking of Brandon Mayfield, the Portland attorney," said Leahy, describing Mayfield's arrest and surveillance because the FBI wrongly thought a fingerprint connected him to a terrorist bombing in Madrid. What might really have moved the FBI, Leahy suggested, was that Mayfield "did hang out with Muslims," despite "the fact that he was out in Portland, Oregon, and the attacks were in Madrid."

That was in May 2005. Now -- in a story prominently reported nationally and internationally last week -- Mayfield received a settlement from the U.S. government that includes $2 million, one more apology and an agreement that he can pursue another lawsuit challenging the constitutionality of parts of the Patriot Act.

Leahy is about to become the new chairman of the Judiciary Committee, a position in which he can hold hearings and issue subpoenas on the act and the way it's enforced. In a statement Thursday, Leahy called the Mayfield case "an unsettling chapter in the annals of the FBI that revealed some of the deeply ingrained problems we have been trying to solve."

Even $2 million later, the saga of Brandon Mayfield is a long way from over. In the courts and the new Congress, it could dramatize and challenge the expanded national security powers claimed by the federal government. The trail FBI agents left in Mayfield's house could run a long way into constitutional issues.

It could play a return date -- this time, featuring Mayfield himself -- in the Senate Judiciary Committee.

Immediately after the final count in the Virginia Senate race put the Judiciary gavel in his hands, Leahy vowed "constructive and purposeful oversight of the Justice Department, the FBI and the other agencies in our jurisdiction." On Thursday a Leahy aide noted the issues of the Mayfield case -- such as secret surveillance and application of the Patriot Act -- are very much the kind Leahy wants to take a long look at.

Meanwhile, Mayfield's Portland attorney, Elden Rosenthal, says the lawsuit challenging sections of the Patriot Act will go forward, with a goal of oral argument before U.S. District Judge Ann Aiken in the spring. As one of the first direct challenges to make it to court, Mayfield's case could dramatize the issues across the country -- and maybe even on Court TV.

The Mayfield story offers the fuel to set off more fires. Despite the FBI's insistence that the Mayfield episode was just a could-happen-to-anybody fingerprint mistake, it takes a lot to make the federal government part with $2 million and an assurance that it's OK for the recipient to sue it again.

Is it unusual for the government to pay out that kind of money and still leave itself open to further lawsuits?

"I believe it is unprecedented," said Rosenthal on Friday. "That's what we were told in settlement discussions."

And yet Mayfield got it, suggesting the kind of leverage his case carries -- and the questions still to be answered.

The feds insist Mayfield's Muslim identity and connections were not known when the original fingerprint identification was made and had nothing to do with the mistake, and they cite the investigation by Glenn Fine, the Justice Department's inspector general. But Fine's January 2006 report did suggest that once the FBI knew about the Muslim connection, it made the agency less willing to drop the idea -- even though the Spanish kept saying they didn't think the fingerprint identification was a match, a point they made well before the feds even arrested Mayfield.

Fine's findings, in fact, led Rep. John Conyers, D-Mich., and Rep. Robert Scott, D-Va., to declare, "The report raises real and serious questions regarding racial and ethnic profiling by the FBI as well as their competence, veracity and use of Patriot Act powers."

Even before that, in summer 2005, Conyers arranged for Mayfield's trial attorney, the superstar Gerry Spence, to testify on the case before the House Judiciary Committee -- until pressure from the committee's Republican majority canceled Spence's appearance.

That won't happen in the new Congress.

Come January, Conyers will be chairman of the House Judiciary Committee, and Scott chairman of the Crime, Terrorism & Homeland Security Subcommittee.

After last week's settlement was announced, Conyers told The New York Times, "The Mayfield case cries out for checks and balances on what has been, at times, an overzealous pursuit of innocent Americans."

Like Leahy, Conyers is now in a position to do some checking and balancing.

So could the federal courts.

Mayfield's constitutional case challenges some of the expanded powers granted the feds by the Patriot Act. The act made it much easier for the federal government to do the kind of wiretapping and secret searches carried out against Mayfield. Previously, countering a foreign agent's threat had to be the primary purpose of the surveillance; under the Patriot Act, the surveillance just has to be related to a threat. That allows federal agents to go to the secret Foreign Intelligence Surveillance Act court for warrants on all kinds of cases on the grounds they might have something to do with a threat.

It's why, notes Jameel Jaffer of the national ACLU, the Foreign Intelligence court now grants more wiretapping warrants than all other federal and state courts put together -- what critics tend to call an end run around the Fourth Amendment.

"In Brandon's case, they were investigating a federal crime," Rosenthal notes. "They could have used the normal criminal process."

Mayfield's suit will challenge the constitutionality of the widely used shortcut. And just as the feds once considered him, because of his Muslim identity and connections, a particularly promising suspect, there are reasons now why Mayfield is a particularly promising plaintiff.

For one thing, as Jaffer notes, many of the other cases challenging the Patriot Act are attempts by defendants to get evidence thrown out of their criminal trials. But Mayfield is charged with nothing; in fact, he has an apology.

And, unlike many others challenging the government's powers, Mayfield is a Kansas-born U.S. citizen -- a situation, points out James X. Dempsey of the Center for Democracy & Technology, that already gave him court access very different from many others being held by the U.S. government.

It also helps create interest in a number of other places.

People are likely to continue watching the Mayfield case.

And this time, not in secret.

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