Taking Liberties: The War on Terror and the Erosion of American Democracy (19 page)

Americans still value their privacy, even after 9/11.
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The National Academies of Science Council concluded that challenges to our national security do not warrant fundamental changes in the level of privacy to which innocent Americans are entitled.
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Some blame technology for destroying privacy, but law professor James Rule assures us that our technology is not our destiny.
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It is incoherent laws
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and odd interpretations of the Constitution, as
chapter 7
will explain, that have left us exposed. Congress can strengthen privacy laws by imposing meaningful limits on acquisition, retention, and dissemination of sensitive information. Even if it is politically impossible—or even unwise—to curtail the government’s acquisition of information, at least privacy laws can limit how widely that information can be shared, and how long it can be retained in databanks. In response to widespread concerns about privacy, George W. Bush created a President’s Privacy and Civil Liberties Oversight Board.
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But as I write, this Board is not engaging in any oversight because President
Obama, more than two years into his term of office, has yet to appoint any members to it.

If we want to preserve our privacy and arrest the slide to a more totalitarian state, we need to exercise the powers we do have as citizens and as consumers. Hossam Algabri decided to go public with his complaint against Fleet Bank because he thinks that consumers, whether Muslims or not, have been far too passive in accepting arbitrary treatment. As shown by the history of the airport watchlists, if people don’t complain loudly and persistently, their interests are unlikely to get much attention from government officials—who are more focused on the terrorists the dragnet might catch than on the innocent people whose lives are disrupted—or from businesses worried about staying in the government’s good graces. Legal scholar Jack Balkin summarizes:

The question is not whether we will have a surveillance state in the years to come, but what sort of surveillance state we will have. Will we have a government without sufficient controls over public and private surveillance, or will we have a government that protects individual dignity and conforms both public and private surveillance to the rule of law?
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It is worth the effort to wrestle with imposing adequate controls to rein in this genie. As lawyer Ben Wizner recently commented to me, “The reason we don’t regard privacy as fundamental is that we have it”—or maybe we just think we do.

II.
SURVEILLANCE
AND
SECRECY

6.
Gutting the Fourth Amendment

We think that the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection
.
¹
—John Yoo, Office of Legal Counsel memo (2001)

When legislation is written that waters down the standard of the Fourth Amendment, it is not the guilty who suffer, but the innocent.
—Brandon Mayfield (2007)

How do you file a brief in a secret court?
—Ann Beeson, ACLU lawyer (2003)

B
RANDON MAYFIELD
, the Oregon lawyer who was the innocent victim of a stupendous FBI mistake, came to understand the significance of what might look like the Patriot Act’s tiniest change to previous law: replacing the word “the” in a statute about foreign intelligence surveillance with the words “a significant.” This deceptively trivial rewording was part of a sea change that has increasingly allowed American citizens to be treated the same way we treated the Soviet Union during the Cold War. Brandon’s story is a disturbing example of how our right to be free from unreasonable searches and seizures is being chipped away, chunk by chunk, and how the courts have failed to intervene.

Brandon thinks that FBI agents were inclined to believe that he was involved in the March 2004 bombing of several commuter trains in Madrid, Spain, because he is a Muslim. He converted to Islam shortly after meeting his Egyptian immigrant wife, Mona. Brandon is an American citizen, born in Oregon and reared in Kansas, and a former Army officer with an honorable discharge. At the age of thirty-eight, he had never been convicted of any crime and had not traveled outside the United States since 1994 when he completed his military duty in Germany. He did not even have a current passport.

Then the FBI entered his life. Employing unprofessional procedures, FBI experts mistakenly declared that his fingerprint matched a partial fingerprint discovered on a blue plastic bag containing detonators that was found near one of the Madrid commuter train stations. The fingerprints evidently did have some remarkably common features. In fact, one court-appointed expert subsequently thought the identification was correct. But after the initial identification, the FBI did not seriously test whether the fingerprints really were a match. Examiners who were supposed to function independently were told that their colleagues had identified the fingerprint as Brandon’s, a violation of sound forensic practice. One retired FBI employee who served as an independent examiner had been reprimanded on at least three previous occasions for mistaken identifications of fingerprints.
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A lengthy 2006 Inspector General report provides a detailed study of how the mistake occurred, blaming circular reasoning and simple carelessness for a conclusion that, by professional standards, should not have been reached.
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After deciding that Brandon’s fingerprint matched the print on the plastic bag, the FBI began to follow Brandon and his family as they went to work (Mona worked as a legal assistant in Brandon’s office), to school, and to their mosque. Attorney General John Ashcroft personally signed an application to the Foreign Intelligence Surveillance Court for permission to eavesdrop in private areas of the Mayfield family home. The FBI used the Foreign Intelligence Surveillance Act (FISA) to set up extensive wiretapping in Brandon’s home and office because at least some of the agents involved doubted that they could meet the more rigorous standards required to wiretap Americans suspected of crimes. In the course of their surveillance, the FBI intercepted a large number of conversations in Brandon’s home and office and covertly searched his home and office computers. They seized a massive amount of material, including his client files and his children’s homework. (They labeled his son’s Spanish homework “Spanish documents.”) They did not notify him that they were searching his home (notice is the usual practice in executing a regular search warrant), but they were careless enough to leave traces of their activities—bolting doors that the family had left unbolted, leaving open blinds that had been closed—so that Brandon, Mona, and their three children had every reason to think they had been burglarized. Despite intense surveillance efforts, the agents found nothing to bolster their suspicions for a simple reason—Brandon Mayfield had no connection whatever with the bombing or the plastic bag.

The FBI also reported the identification of Mayfield to the Spanish police. But Spanish experts who examined the two fingerprints advised the American agents that their identification of the fingerprint on the bag as Brandon Mayfield’s was wrong. On April 21, FBI agents met with Spanish investigators in Madrid in order to explain and defend their conclusion. At this meeting, the Spaniards complimented their American counterparts on a detailed presentation and said they would reexamine the fingerprints to check their own conclusions.

On May 4, reporters began to inquire about the existence of an American suspect in the Madrid bombings and the FBI, concerned about potential media leaks, decided that it would be a good idea to arrest Brandon Mayfield promptly. But the agents recognized that they did not have probable cause to believe he had committed a crime—just questions about how his fingerprint (as they thought) had gotten on that bag. And so they decided to arrest him as a “material witness,” the same jury-rigged technique used against Abdullah al-Kidd (who was detained on the pretext that he was needed to testify at the trial of Sami al-Hussayen). On May 6, agents submitted affidavits in support of their request for a material witness arrest warrant and for additional search warrants. In these affidavits, they continued to affirm that the FBI considered the fingerprint a “100% positive identification.” The material witness affidavit mentioned that the Spanish police had made “preliminary” findings which were “not consistent” with the FBI’s findings (although not that the Spaniards had flat out disagreed with their identification). But, the affidavit averred, the Spanish police “felt satisfied” with the FBI’s conclusion after the April meeting. The intimation was that the Spaniards had come to recognize that their preliminary investigation was not as thorough as the FBI’s and had bowed to the Americans’ superior skills. The Inspector General later noted the FBI agents’ “overconfidence” in their own identification—they never asked the Spanish police to explain the basis for their negative conclusion, and they never seriously reexamined their own conclusion.
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The Inspector General’s report also repudiated excuses FBI agents offered after the fact for their incorrect fingerprint identification (like lack of access to the plastic bag itself).

The material witness affidavit also acknowledged that Brandon did not have a current passport issued in his name but declared there was a “likelihood” that he had false or fictitious travel documents. These affidavits also made much of Brandon’s religion, offering his attendance at a mosque and the fact that he advertised his legal practice in a publication nicknamed
the “Muslim Yellow Pages” as evidence connecting him to the bombing as a material witness. Brandon’s lawyers later pointed out that among other businesses advertising in the “Muslim Yellow Pages” were Avis, Best Western, and United Airlines. The Inspector General later characterized a number of assertions in this affidavit as misleading. Contrary to the affidavit’s statement that the Spaniards had come to be satisfied with the FBI’s identification of Brandon Mayfield, the Spaniards had not expressed any such agreement. In fact, on reexamination of the fingerprints, they adhered to their conclusion that the FBI was wrong.
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And there was no basis whatever for the affidavit’s statement that it was “likely” that Brandon had gotten a fake passport,
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except for the same kind of backward reasoning that had led to the misidentification of his fingerprint in the first place—if Brandon was involved with the Madrid bombing, he must have been there and if he had no genuine passport he therefore must have had a fake one. But the judge reading these affidavits had no reason to doubt the fingerprint identification or to question whether the FBI actually had evidence of a fake passport. And so, on the basis of these dubious affidavits, a material witness arrest warrant was issued.

The arrest was suitably dramatic. The FBI announced to the media that they had made a 100 percent match of Brandon’s fingerprint with the Madrid fingerprint. Mona was not told where her husband was being held, but she was cruelly told that he was a prime suspect in a crime punishable by death—despite the fact that he was ostensibly only being held as a material witness. Brandon spent two horrible weeks in the Multnomah Detention Center until, on May 19, the Spanish police announced to the FBI and the media that they had definitively matched the fingerprint in question with an Algerian suspect—who had absolutely no connection with Brandon Mayfield. At the request of the Portland prosecutor, Brandon was released from prison the next day, but he was held in home detention for three more days as the FBI agents continued to resist the conclusion that they had targeted the wrong man.

After his ordeal finally ended, Brandon and his family were so outraged about their persecution that they decided to sue. Government lawyers must have thought that any jury would be shocked by the FBI’s campaign against Brandon Mayfield because they settled his claim for unjustified arrest and imprisonment for $2 million. The settlement
⁷
included not only money damages, but a formal apology:

The United States of America apologizes to Mr. Brandon Mayfield and his family for the suffering caused by the FBI’s misidentification
of Mr. Mayfield’s fingerprint and the resulting investigation of Mr. Mayfield, including his arrest as a material witness in connection with the 2004 Madrid train bombings and the execution of search warrants and other court orders in the Mayfield family home and in Mr. Mayfield’s law office.
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As part of the settlement, the Mayfields preserved the right to continue their constitutional challenge to the Patriot Act provision that authorized part of their unjustifiable harassment—the expansion of the authority of the Foreign Intelligence Surveillance Court over an American citizen in Oregon—as the government was not willing to apologize for that. The government argued that the Patriot Act amendment in question did not violate the Fourth Amendment, even if it did encourage eavesdropping on and searching the home of an American family without the usual Fourth Amendment–required probable cause. The Mayfields won a fleeting victory from a federal judge who understood and valued the Fourth Amendment’s safeguards against government overreaching. Oregon District Court Judge Ann Aiken held that the Patriot Act expansion of FISA permitted an illegal end run around the Fourth Amendment which, she said, “has served this Nation well for 220 years, through many other perils.”
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But Obama Administration lawyers succeeded in getting Judge Aiken’s decision reversed on appeal for a very peculiar and disconcerting reason. Before getting to this surprise litigation twist, I need to explain why it was that Brandon Mayfield, an American citizen in the State of Oregon, was subject to the Foreign Intelligence Surveillance Court in the first place and why the Fourth Amendment, a critical part of our constitutional heritage, is not protecting Brandon and others like him from this kind of ordeal.