Brandon Mayfield was a lawyer just getting by. He looked like a forlorn professor with his beard and glasses, and he wasn’t the kind who sprayed large quantities of charisma around. He worked in his smallish rented law office west of downtown Portland, Oregon. Mona, his wife, was born in Egypt—that turned out to be her greatest sin—but she had an open, winning personality and acted as his secretary. The two of them likely would have toiled in obscurity helping immigrants and the poor if not for a series of events that began across the globe in Madrid, Spain, on March 11, 2004.
That morning a group of terrorists, now thought to be related to Al Qaeda, set off a series of coordinated bombings on the Madrid commuter train system that killed 191 people outright and wounded 1,800 others. The Internet images that made their way around the world were of bloody, mutilated body after body laid next to one another in a straight line that stretched for nearly two city blocks, each waiting its turn to be identified, tagged, and hauled away.
A wounded mother, half naked and too shocked to weep, holding her dead baby in her arms, the tiny corpse emptying its blood on the pavement … the screams of the injured, the moans of the dying, the hollering of ambulance drivers, the police shouting orders, and sirens crying … the crazy cacophony of chaos and death—the doors of hell had been blown wide open. Brandon Mayfield, along with millions of others, read about the bombing in the morning paper. “Horrible. What’s happening in this world?” he thought. Then he poured himself another cup of coffee.
The Spanish police lifted fingerprints from a blue plastic bag that had once contained the detonators for the bomb, and they promptly submitted digital photographs of the fingerprints to Interpol, an organization of police from 190 countries that cooperate in solving international crime. When the Latent Print Unit of the FBI received the print from Interpol, an agent turned to the FBI’s Integrated Automated Fingerprint Identification System (IAFIS) for help. The FBI claims its computer stores the largest biometric database in the world and houses the fingerprints and criminal histories of more than 70 million subjects in its criminal master file, along with more than 34 million prints of civilians. Included in its criminal database are fingerprints “from 73,000 known and suspected terrorists.”18 The FBI’s computer automatically performs searches for the print in question by optically scanning the submitted print and comparing it with those in its files. This computer has eyes.
The FBI gave the Spanish fingerprint an unpretentious name—“Latent Fingerprint #17” (LFP 17 for short)—and on March 15, 2004, the FBI’s computer dutifully listed twenty candidates as possible matches. Brandon Mayfield was on the computer’s list—ranked the fourth most likely to match the print on the blue plastic bag. The computer also told the FBI that Brandon was thirty-eight years old, a former U.S. Army officer with an honorable discharge, and a practicing Oregon lawyer, and that he had never been convicted of any crime and had not been outside the United States since 1993, when he, his wife, and three children visited Mansoura, Egypt, Mona’s place of origin.
One thing we know, and we know it because we’ve been taught it since we were old enough to watch cop movies on TV: The agents of the FBI are honorable, supercompetent men who keep us safe, and no loyal American would doubt a fingerprint identification made by the FBI. I was taught that in law school, and I took careful notes: “If an FBI expert testifies that the fingerprint on the murder weapon belongs to your client, well, it belongs to your client. Period.” It hurts me to now report that our belief in the infallibility of the FBI’s fingerprint experts has been little more than a cultural lie.
Once the fingerprint computer identifies an initial list of subjects, human eyes take over for a closer evaluation. Agent Alfred, a senior fingerprint examiner, concluded that Brandon’s left index fingerprint matched LFP 17, the fingerprint on the blue plastic bag. That erroneous identification was confirmed when the FBI, following its protocol, submitted the print for verification to Mr. Smart, a so-called independent fingerprint examiner. Mr. Smart had once been an employee of the FBI, but for reasons not clear on the record, he’d left the Bureau and was thereafter hired on a contract basis to do fingerprint examinations. During his term as an FBI employee, Smart had been reprimanded on at least three occasions concerning his work in fingerprint identification.
When a tragedy of errors gets rolling, its momentum is hard to stop. Had the FBI given even a passing, competent squint to the photo furnished by the Spanish police, it would have been obvious from the relative position of all the prints on the blue plastic bag that LFP 17 could not have come from Mr. Mayfield’s left index finger. Moreover, there were but a few points of similarity between 17 and Mayfield’s print—not enough for any qualified agent to declare a match, not to mention the important dissimilarities such as interruptions in what the experts call the “ridge flow.” That’s how an innocent American citizen can one day wake up facing the death penalty as a mass murderer. And what’s your lawyer going to say when the FBI expert slowly turns his sad smile on the jurors and tells them that the fingerprint belongs to you?
External factors were also in play. Not only was Mona born Muslim, she had convinced her Baptist husband to convert to Islam—by 2004 a virtual crime in itself in the eyes of many Americans. What’s more, the FBI was still feeling the lash of its 9/11 failures. Solving the Madrid bombing in record time could restore the FBI’s tarnished luster in the eyes of the public and loosen Congress’s purse strings for the Bureau.
On March 20, 2004, the FBI issued its formal report proclaiming to the world that print 17 belonged to Brandon Mayfield. That splendid bit of FBI science transformed a loyal American, husband and father and ethical lawyer with a spotless record, into a member of an international conspiracy that was responsible for the mass murders in Madrid.
But the Spanish police provided their report to the FBI. They advised the Bureau that they’d compared print LFP 17 to Brandon’s, and their conclusion was no match. How dare a cluster of cops from a minor member of the European Union like Spain contest the match made by the FBI, the world’s ultimate authority on fingerprint identification? In fact, a unit supervisor chief in the Latent Print Unit of the FBI, Stephen Meagher, once testified that in the entire history of fingerprint examination the FBI had never made a misidentification in a court case. He said never.
Still, the Spanish no-match report caused serious reverberations at the FBI. A “false positive” fingerprint identification could result in the revocation of the professional licenses held by the erring FBI examiners and could even lead to a revocation of the American Society of Crime Laboratory Directors certification of the FBI itself. And this Mayfield mess could bring on a congressional investigation that might fracture the FBI’s credibility worldwide.
Worse still, in the two years before the Madrid bombings, lawyers had mounted challenges in several federal courts claiming that fingerprint examination as a science did not meet the evidentiary standards required by the United States Supreme Court in a case referred to as Daubert. The very reputation of fingerprint analysis itself was at stake. The FBI couldn’t risk public embarrassment, and despite having been officially told by the Spanish that 17 was not a match to Brandon Mayfield, the FBI continued to insist its Mayfield print match was correct.
Am I saying the FBI was willing to convert an innocent American citizen into an international terrorist, and subject him to the ultimate penalty—death—in order to save the jobs of its agents and the reputation of the Bureau itself? Given the right circumstances, might our revered G-men end up sending one of us, an innocent American citizen, to the death house? On April 21, 2004, to shore up this bureaucratic crime, the FBI sent its agents to Madrid to meet with their Spanish counterparts—their mission, to convince the Spanish that the FBI’s match was correct. But the Spanish remained steadfast: 17 and Brandon’s print were not a match, they insisted.
After its erroneous fingerprint match, the FBI made application to a secret court created by Congress, the Foreign Intelligence Surveillance Court (FISC). That secret court authorized the FBI to place electronic listening devices (“bugs”) in the intimate rooms of the Mayfield family home, and to make covert “sneak and peek” searches of their house. Soon FBI agents were following the Mayfields and putting their modest home under surveillance. The agents discovered when the kids would be in school and Brandon and Mona off to work at Brandon’s law office. Then the agents surreptitiously entered the Mayfield house—in broad daylight. Some of the best lock-pickers in the business are respected members of the FBI. The irony here is that the FBI was about to terrorize innocent American citizens in its proclaimed “war against terror.”
History now permits us to watch these G-men at work. See them in the Mayfield home, sneaking, searching, snooping—into the family’s private drawers and closets. See them handling the family’s most personal possessions, copying the kids’ computers and hard drives and taking DNA samples from the butts of Mona’s Camel cigarettes.
Watch them as they install those tiny microphones under the bed and under the breakfast table and affix taps on their phones. Yes, I hear those who are unwashed in the troubled waters of our times innocently saying, “What’s the big deal? I have nothing to hide.” Personally, I have everything to hide in the privacy of my home. Animals from rabbits to bears, and birds from wrens to eagles, have nothing to hide. But their hole, their den, their nest, is their private, infinitesimal part of the universe that belongs only to them. Put your hand under an old hen who’s sitting on her eggs and see what happens to your hand.
It wasn’t long before the Mayfields began to feel something was awry. When they came home, they found their door locks locked in the opposite order—the upper lock was now open and the lower lock locked. Then one day the electric clock was half an hour slow. Someone must have turned off the electricity so the house alarms would be disconnected. Nothing seemed to be missing, but Shane, then fourteen, had been reading 1984 and was beginning to believe they’d entered the nightmare world of George Orwell. He shouldn’t believe everything he reads, his father advised. They’d committed no crime, except, of course, they did go to the mosque, but they were protected by the Constitution. Mona couldn’t sleep. Brandon tried to set her mind at rest. They were blessed in America by the protection of our Constitution.
The Mayfield family began criticizing themselves for their unwarranted paranoia. Just the same, they double-locked their doors at night and found themselves whispering at the dinner table. They wouldn’t say anything over the phone, not even the grocery list. They lay at night with their eyes staring at the ceiling, wondering. Worrying. Listening for the smallest of strange sounds.
Then that old, comforting refrain would return. “Forget it. We have nothing to hide. There’s nothing and nobody out there trying to get us. The demons are only in our minds.” But no sooner did they vow to relax than their fear, as pervasive as their breathing, returned. “This constant fear thing is a sure sign of mental illness,” Brandon said. “We have to stop this.”
A few days later Shane was home with the flu. He heard noises. He looked out the window and saw a man trying to break into the house. Terrorized, he called his mother, but before she arrived the FBI’s lookout parked across the street saw her coming, and the agent left before she got there. Brandon and Mona wondered if Shane wasn’t suffering from some kind of hallucination attributable to the fever of his flu. Besides, Shane had been reading that chilling Orwell stuff.
During the same time, the FBI secretly entered Brandon’s law office, rifled through his confidential client files, installed electronic listening devices, and wiretapped his phone—the once-sacred attorney-client privilege having been cast aside as collateral damage in our supposed “war against terror.”
But the European media was about to expose the FBI’s botched Mayfield investigation. The Bureau also learned that the Los Angeles Times was ready to come out with its story discrediting the FBI’s match. The Bureau had to act fast, and it concocted misleading and false affidavits in order to justify the arrest of Brandon as a “material witness.” An FBI investigator submitted an affidavit to a sitting federal judge in Portland. This affidavit reiterated that the three previous fingerprint experts considered 17 a “100% positive identification” of Brandon Mayfield. No mention was made of the fact that the Spanish National Police didn’t agree and had so reported to the FBI. Instead, the affidavit claimed that the Spanish National Police “felt satisfied with the FBI laboratory’s identification.”
These sworn statements from the FBI also focused on Brandon’s association with fellow Muslims—as we all know, an activity fully protected under the Constitution. In support of search and arrest warrants, the agent included in his affidavit that Brandon advertised his legal services in a directory from Jerusalem Enterprises, known as the “Muslim Yellow Pages.” A cursory look at the website of the “Muslim Yellow Pages” would reveal that major American car rental agencies such as Avis, motel chains such as Best Western, and airlines such as United also advertised on this site. In their searches of the Mayfield residence, the agents had even seized one of the children’s homework for Spanish class, which the FBI offered as proof of Mayfield’s connection to Spain.
On May 6, 2004, Brandon Mayfield was arrested as a “material witness” and hauled off to the Multnomah County Detention Center, a euphemism for jail. There he found himself imprisoned with the usual collection of drunks, dope dealers, felons, and crazies. It was as if he’d stepped into the pages of Kafka’s The Trial, having awakened to discover that he’d been charged with a crime he did not commit, the nature of which was never revealed to him, and that some impersonal, unidentified authority had taken control of his life.
Mona remembers, “I was about to prepare my husband’s lunch when two FBI agents knocked on our door. I was vacuuming. I thought it was the mailman.” She said the agents sat her down at her dining room table and began ransacking her house. “I left everything as they left it. I didn’t have the strength to clean up the mess.”
On May 20, Brandon was still in prison garb staring out from behind bars, still caged with the desperate and degenerate, a man dazed and confused by a nightmare from which he could not awaken.
He was a mass murderer?
The presiding judge in Portland’s federal court thought something must be seriously awry. Mayfield, a solid, ethical member of the Oregon bar, had traveled to Spain and was somehow involved in an international conspiracy to kill innocent Spanish people? The judge needed convincing before he would issue a warrant for Brandon’s arrest.
No problem. The FBI brought in one of its noted fingerprint experts, who proceeded to show the judge the comparisons and assured him there was a solid match. Having no expertise of his own, the judge, like jurors in untold thousands of cases over scores of years, had to accept the word of that institution’s expert. The judge reluctantly issued the warrant.
Brandon Mayfield was as good as dead. By trial time the jury would have been soaked in a downpour of media concerning the Madrid bombing. The stories would spare no words describing the blood and horror, and how Brandon, with his Muslim connections, had been irrefutably connected to this mass murder when the FBI identified his fingerprint on the blue plastic bag. He would be given a media nickname, something like “the Muslim Bomber.” Would the government really need a trial?
The FBI’s fingerprint expert would take the stand. Jurors know the FBI never errs in fingerprint identification. The testifying agent’s manners are impeccable. Of course, he’s been chosen by the FBI to testify in this case because, over the years, he’s become such a powerful presence on the witness stand that the government always wins in his cases. Occasionally he smiles that trademark small sad smile at one of the women—one of the motherly type.
“Yes,” he says as a plain matter of fact, “this print belongs to Brandon Mayfield.”
“Will you identify Mr. Mayfield for the jury, please?” the assistant U.S. attorney asks.
“Yes, of course,” and the FBI expert points at Brandon. “He’s there at counsel table, the gentleman with the beard and glasses who is sitting next to his lawyer.” The jurors turn and stare at Brandon to see what his reaction will be. Brandon stares back at the FBI man. What else can he do? If he jumps up and hollers, “You’re lying,” the judge will throw him in jail for contempt. If he says nothing, the jury wonders how he can be so cool, so unmoved by the agent’s damning testimony. If he silently shakes his head in denial, well, that’s what every guilty man would do.
Soon the FBI expert puts up those huge enlargements of Brandon’s print alongside print 17, and with a pointer he shows the jury the ridges and the valleys and the jumps and the gaps, and after he’s finished there’s little doubt in anyone’s mind that that print belongs to that man sitting over there staring at the jury.
“Mean-looking bastard,” the reporter from the L.A. Times whispers to his counterpart from the San Francisco Chronicle.
“Yeah. Those Muslims are like that.”
Brandon can’t afford the price of a famous defense attorney. Their home is mortgaged. He no longer has any income from his little law office. He’s worse than broke. His family needs every penny he can beg or borrow to live on. The public defender is his only hope. And the public defender is no match for the assistant U.S. attorney who’s been specially selected for this once-in-a-lifetime international case. Of course, Brandon’s public defender will put on a fingerprint expert of his own, but his expert will be a retired police officer from somewhere who got his own training from the FBI and whose testimony can’t stand up to the impeccable competence of the government’s expert witness.
At last the jury is shown photos of the twisted, bloody body parts and the stacks of the dead from the bombing. The photos are in color and so graphic the jurors almost retch. The jurors look over at Brandon. He is stoic as usual. His face reveals nothing. Then the jury hears about his connection to certain Muslims. He once represented a convicted Muslim terrorist. He’s advertised in Muslim publications. He goes to the mosque and is a recent convert. He is obviously part of that dangerous worldwide hate group.
When Brandon takes the stand to testify he’s still his stoic, unemotional self. As human and loving as Brandon is, he’s laced with fear as he sits up there on the witness stand trying to defend himself. He denies any connection to the bombing. He only represented the convicted Muslim terrorist in a child custody case, and that was before he knew anything about his client’s connection to Al Qaeda. He was never in Madrid or anywhere else except home when this all occurred.
The government prosecutor pounds him mercilessly on cross-examination.
“Where were you on the day of the bombing?” the prosecutor demands.
“I don’t keep track of my days. I had no need to.”
“You’re claiming you don’t know?”
“I was at home as usual. I was at my office, I was…”
“I suppose your wife and kids will testify to that,” the prosecutor says, “and you want us to believe them.”
“Yes.”
“I suppose that one of your Muslim clients can tell us where you were on that day?”
The prosecutor extends a long knowing look to the jurors. The more Brandon protests the charges, the deeper he sinks into the morass from which he is trying to extricate himself. It’s like someone being thrown into quicksand and trying to struggle his way out.
And what if Brandon doesn’t take the stand? Then the jurors will later argue that if they’d been charged with such a heinous crime they sure as hell would have taken the stand. They would have nothing to hide, and they’d fight to tell the jury and the world the whole truth. They’d never hide behind the Fifth Amendment, not for a damned minute! “But this Mayfield—you saw him. He just sat there staring out at everyone.”
And don’t forget. We are engaged in a “war on terror.” Good Americans called to jury duty will do their job and vote to convict the accused if there is any reasonable evidence to support such a verdict. They know going in that the prosecutors wouldn’t bring the case if the case weren’t just. And the defense attorney? Their kind defend the Manson types and try to make them look like Mother Teresa’s baby brother. Good Americans have to protect their families and their neighbors from these terrorists. If jurors won’t protect themselves, and the rest of us, who will? And thank God for the selfless service the FBI provides America. God bless the FBI.
Later, I asked Brandon why he hadn’t produced the records in his office that would prove where he was when the bombing took place. His answer echoed what I’ve heard time and again from those feeling the full weight of Power’s bootheel. “True, I hadn’t been out of the country since 1993,” Brandon said. “But why would they listen to me? I was the terrorist. And I was terrorized. I couldn’t believe this was happening in America. My public defender was afraid they were going to send me to Guantánamo, and I was more worried about Mona and the kids than anything. What would happen to them? And they were rifling through my confidential client files. No lawyer can permit that. Yet I couldn’t stop them.”
Mona was afraid not only for Brandon but for herself and her family. They weren’t safe, even behind the locked doors of their home. And they didn’t have a husband and father to protect them. All she could tell her children was that it would all work out, their daddy didn’t do anything wrong, there’d been a terrible mistake. But she knew that the real mistake was that they were Muslims. And she knew that the ringing guarantee in the Constitution that Americans are free to worship as they please had crumbled around them. Nothing in the Constitution would save her husband. Or her. Or their children.
Then the Spanish police—not the FBI, not the Department of Justice, not our courts or judges or jurors, not even our sacred Constitution—saved Brandon Mayfield. On May 19, 2004, the Spanish National Police advised the world that they had matched the fingerprint on the blue plastic bag to an Algerian, Ouhnane Daoud. Like the proverbial culprit caught with his hand in the cookie jar, the FBI quietly, in a soft international mumble, admitted that its fingerprint identification of Brandon Mayfield was in error, and, incredibly, the FBI then stated that LFP 17 was “of no value for identification purposes.”
No value?
No value.
And Brandon was released.
* * *
How had Brandon’s false arrest affected the Mayfield children? Shane, fourteen, the Mayfields’ oldest, had been waiting for his mom to pick him up after school. He remembers his mother coming toward him with tears in her eyes, a sight he’d rarely seen. “Your dad’s been arrested by the FBI,” she said.
At first Shane didn’t believe it, but his mom kept crying as they drove to Sharia’s school to pick her up. Shane went in to get her and shared the news: “Dad’s been arrested by the FBI.” At first Sharia thought it was a joke, but when she saw the truth in Shane’s eyes she, too, started crying.
When they got home the doors to the house were wide open, swinging in the wind. The first thing Shane saw was sticky notes with foreign handwriting on them—one on the exhaust fan in the kitchen and one in each of the other rooms in the house, labeling each room. The place looked as if a cyclone had hit it. They found the cats locked in the closet.
“My life had been so normal,” Shane said. “I couldn’t believe it could get so weird, so fast.” He went up to his room. He’d saved his old homework and shoved all the papers in a cabinet underneath the TV—a stack of papers seven or eight inches high. Now his homework was thrown across the floor. On the other side of the room, his soccer shoes and his shin guards were on the floor where they’d been dumped out of his soccer bag. The cops had even taken his computers and hard drives.
Later that evening Shane looked through the blinds of his room and saw the lights and the television trucks. The phones were ringing, and his mom was outside, trying to talk to the press. That weekend his friend Abdul called and said, “It’s a good thing you didn’t come to school on Friday because things got really hot about what happened.” Shane said he was afraid to go back to class. “Who out there was going to believe that my dad was innocent and not a terrorist?” He remembered a visual from one of the television stations that had MADRID BOMBING in red blood dripping down a yellow screen.
A few days later, when Shane returned to school, he worried that someone would beat him up and that his grades would be affected. His Spanish teacher asked for his homework, and he said, “I don’t have it, it’s been confiscated.” The whole class was staring at him. Shane thought, “Everybody who ever liked me is thinking, ‘Man, that guy’s related to a terrorist.’”
In his literature class the kids started asking him questions. The teacher just listened and looked on. It embarrassed and scared him. The more he tried to argue that his father was innocent, and presumed so under the Constitution, the more kids argued against it. The FBI wouldn’t arrest an innocent person. How do you argue against that?
Shane told me that suddenly he found himself the man of the house, and he didn’t know how to comfort his mother and the two younger kids. His mom was brave, but the family was panicked. What if they killed their father? What if they had to move out of their house? What if they didn’t have enough money to eat? If they could take his dad, who was innocent, they could take his mom, too, Shane thought. Both his dad and mom were Muslims. Maybe the FBI would kill them all. He remembered going to their law office with his mother and seeing a footprint on the tabletop. He’d looked at the place where the phone lines were and saw duct tape around the wires.
The worst was when he visited his father in jail. “I was sitting in a room with a lot of people I didn’t normally sit with. It felt creepy. They gave us an alias. Then a police officer would call us in. When it was our time to go it was like, ‘Mr. Taylor’s visitors’—and, oh, yeah, that’s us, the Taylors.” The family was led to the far end of the visiting booth, where they could see his father, in chains, standing behind the door. Then the guards led his father in on the other side of the bulletproof glass that separated them, and Shane thought, “I’ll never be able to touch him again. He’s going to prison for life. And they’ll probably kill him.”
When he saw his father, he said to himself, “Suck it up, Shane. Dad can’t see you like this.” Shortly the guard came in and said, “Time’s up.” Shane put his fist up to the window and his father put his fist up to the window.
Shane was in math class when he got a phone call at the principal’s office from his mother. The good news: His father was out of jail and was home. He said, “I was so happy, but when I got home Dad still had that really concentrated look on his face because he was under house arrest.”
“What’s going to happen, Dad?” Shane asked.
“They are going to put me on trial. But don’t worry. The jury will find me innocent.”
* * *
Brandon contacted me through a mutual friend, Michele Longo Eder, one of America’s great women lawyers. He wanted me to represent him against the U.S. government for the devastation he and his family suffered at its hands—the hands of their own government. I invited him to come to Wyoming to tell me his story, and he did, this serious-looking young lawyer with the hurt in his eyes and the weight of the world sitting on his slumped shoulders.
As I listened to Brandon I began to wonder: How could any person fully recover from such a lethal attack? He’d been falsely accused by his own government of unimaginable crimes he did not commit and threatened with death for their commission. He’d been helpless to prove his innocence and was teetering on the edge of both emotional and actual extinction at the hands of the FBI, an institution created to protect him and his family that had betrayed them instead.
Michele Longo Eder and I decided to bring in a leading Oregon lawyer who knew what to do in cases in which critical, abstruse issues of law were embedded, a man who could find his way around the Oregon court system like a hound dog at home, Elden Rosenthal. We three filed suit for the Mayfield family members against the individual FBI agents as well as the U.S. attorney general, John Ashcroft. Why didn’t we sue the FBI? Under law, we citizens are not permitted to sue our government. The only recourse is to sue the individuals our government employs and hope the federal judge will allow the case to go to a jury.
Our team wanted simple justice for an innocent father and for the pain his innocent family had suffered. But Brandon wanted his and the family’s suffering to stand for something more than money damages. He wanted the so-called Patriot Act to be declared unconstitutional since it permits the government to accomplish its clandestine invasions into our private lives without first demonstrating that probable cause exists that the subject of such secret surveillance has committed a crime. Probable cause has always been the bedrock of our protection against a police state in America.
On April 7, 2005, Dan Eggen of the Washington Post wrote:
The Justice Department is acknowledging for the first time that the FBI used a secret search warrant to copy and seize material—including DNA samples—from the home of Brandon Mayfield, a Portland, Ore., man who was wrongly arrested and jailed last year in connection with the March 2004 train bombings in Madrid.
In statements and testimony this week, Attorney General Alberto R. Gonzales … said that some of the special powers used to spy on Mayfield were strengthened by the USA Patriot Act.… The department acknowledged that during clandestine searches of his home the FBI made copies of computer drives and documents, and that “ten DNA samples were taken and preserved on cotton swabs and six cigarette butts were seized for DNA analysis.” Authorities took approximately 355 digital photographs.…
[Mayfield was also] “the target of electronic surveillance and other physical searches authorized pursuant to FISA”—the Foreign Intelligence Surveillance Act, which governs such warrants and was expanded under the Patriot law.
[Representative John] Conyers wrote to Inspector General Glenn A. Fine yesterday that “it is a frightening prospect that an innocent person can have his home secretly searched, his DNA secretly taken and stored and his computer files raided by the federal government. Now the Bush administration apparently believes that Mr. Mayfield is not even entitled to know the extent to which his privacy has been invaded.”
Our team’s Michele Longo Eder was a natural-born ferret and, more than Rosenthal or I, was responsible for the facts we gathered. I remember finding her on her hands and knees facing a mammoth pile of articles spread out on the floor of her office. She missed nothing printed or hinted. She attended a national investigators’ conference where the supervisor of the FBI’s fingerprint experts was giving a seminar at which he made excuses for the Bureau’s wrongful identification of Brandon’s fingerprint. Michele was our mole, all right. And daily she was reporting to me.
During the discovery phase in our lawsuit, the government was ordered to furnish us all relevant evidence, which included an e-mail from an unidentified FBI operative dated May 5, 2004, a time before the FBI was exposed by the Spanish for its false identification of Brandon’s print. The operative wrote:
There is a man living in the Portland area who has been tied to the Madrid bombing by a fingerprint at the scene. His name is Brandon Mayfield, Muslim convert and attorney. [Note “Muslim convert” comes before “attorney.”]
Earlier this week, an LA Times reporter in the Paris Bureau called the Legat19 in Spain, Ed Sanchez, to ask about information the reporter had heard that there was an American tied to the Madrid bombings. At that time, we don’t think he had the name or location or the fact that the evidence is a fingerprint.
The problem is there is not enough other evidence to arrest him [Mayfield] on a criminal charge. There is a plan to arrest him as a material witness if and when he gets outed by the media.
Neither the National Press Office nor the Portland Division has received any media calls as of this morning. If you receive a call from the Times we would ask whether or not publication is imminent. The powers that be are trying to hold off as long as possible on any arrest, but they want to make sure an arrest happens before anything hits the media (my emphasis).
To complicate things, the Legat just notified Portland that he and it had the details about the evidence that it said it planned to publish soon (my emphasis). Thanks for your help.
[Signature blacked out.]
The FBI had just barely beaten the press. Brandon was arrested the next day before anything hit the papers.
* * *
The judiciary itself was about to become involved. Yes, the judges. Federal judges hang out in high, rare ether free of contamination and are said to be as meticulously honest as nuns at a card game. Even their thoughts are sanitized. In Oregon the selection of a federal judge to try a newly filed case is made randomly by the court clerk’s computer. We were fortunate in the Mayfield case. We drew a respected judge, one we had confidence in, Judge Ann Aiken.
But suddenly Judge Aiken was taken off the case by order of the chief judge. A short time later Elden Rosenthal, by mere chance, met Judge Aiken at a joint meeting of the bar and bench. During polite conversation he told her he was sorry she was disqualified to sit on our case. Elden thought perhaps she’d somehow been personally connected to a lawyer or a party in the case—something like that. To his surprise she told Elden she’d been quite willing to sit on the case, but she’d been removed by the chief judge without any reason offered. She said this was happening frequently to her and another woman judge.
Some of the senior federal judges in the district had apparently decided to secretly circumvent the random selection of the computer, leaving us lawyers who practiced before them believing that the random selection of judges was at work as usual.
The chief judge, who’d been calling these behind-the-scenes shots, assigned our case to another senior judge in the circuit; let’s call him Judge Smith. Judge Smith (whom I had never met) apparently was not overly delighted to see Gerry Spence come tramping into Oregon’s federal court system. He told a group of lawyers and judges at a judicial function that Gerry Spence would never be able to get away with the antics and tactics he pulled on Judge Haas in the Sandy Jones murder case, a trial that ended with her acquittal on all charges. Smith had never been in a courtroom with me.
Judge Harl Haas, who sat on the Sandy Jones case, happened to be present when Judge Smith made those public remarks. Judge Haas was offended and immediately advised me of Smith’s prejudicial remarks. The above mentioned court rule providing for the random assignment of cases to judges protects both judges and litigants from any suggestion of impropriety. Now, what happens if the chief judge violates that rule with no given reason except that he has the power to do so? The indiscriminate use of such power can lead to abuse. Already two women judges in the circuit were complaining. Moreover, the assignment of a case to a judge who had an advertised adverse attitude toward one of the attorneys, namely me, could dilute one’s confidence that an impartial judge was overseeing the trial. That’s why the computer did the selection in the first place.
Why did those I perceived as the “good old boys” on the circuit want Judge Aiken off our case? Maybe, in fact, no one wanted her off. But this was a case that would challenge the Patriot Act and would make national news and the law journals. Maybe Judge Smith lobbied the chief judge to give him the case. Maybe not. In any event, for some undisclosed reason he got the case that the computer had assigned to Judge Aiken.
Lawyers have an obligation to protect the judiciary from undue criticism, but that duty does not silence a lawyer when he faces an opposite responsibility. We couldn’t take a chance on Judge Smith. Brandon’s case was a watershed case that could change the course of the law. We immediately filed a motion that set forth a summary of the facts just stated and demanded the case be returned to Judge Aiken, the lawfully selected judge in our case. Absent such relief we sought the appointment by the Ninth Circuit Court of Appeals of an out-of-district judge to supervise discovery and to hear our motion.
As fast as one could blink a judicial eye, the case was summarily reassigned to Judge Aiken by the chief judge—one of the more timely decisions I’ve experienced in a federal court. I suppose the chief judge and Judge Smith weren’t particularly breathless to have us put them on the witness stand and ask simple questions like “How did Judge Smith get this case when it had been regularly assigned to Judge Aiken? For what reason was this change of judge decided? Name all the judges who took part in this decision. Why was Judge Smith selected? Had he requested the case at any time either before or after its assignment to Judge Aiken? Did you advise Judge Aiken as to why she was removed from the case? By the way, in passing, how often has this sort of thing happened in this jurisdiction before with female judges in the district? And for what reason? And finally, as a judge, what discipline would you suggest against judges who violate their own rules in such a case as this?”
* * *
We were now suing agents of the FBI for having violated the Mayfield family’s civil rights. In such cases you usually enter the gates of doom and fight your way across its entire landscape, including years of struggle through endless government tactics, before you can even get to a jury. Many times the courts throw these cases out for reasons excavated from a universe of legalese. But one day the government suddenly wanted to settle our case before we’d gotten much more than started.
“No, we shouldn’t settle,” Brandon insisted. “This case is more important to America than to us. That so-called Patriot Act lets them break into our homes without a showing of probable cause. That’s police state stuff. We’re not going to let them buy us off with a settlement. We need the money. But we’ll get by somehow.” Mona agreed.
But the government was persistent. Through its assistant U.S. attorneys the government said, “So you want to test the constitutionality of the Patriot Act? All right. We’ll settle all your damage claims if we can reach an agreeable amount, and you can still contest the constitutionality of the Patriot Act.”
“It’s because the FBI doesn’t want all of their illegal sneaks and peeks made public in a public trial,” Rosenthal said. “They like their secret courts. That’s why they want to settle.” I thought that more important to the FBI was its reputation of infallibility in the supposed science of fingerprint identification. Our case could forever scar that reputation. Yet the government was making a no-lose offer to the Mayfields.
I said, “But if we don’t take their offer, and Judge Aiken overrules all of the government’s motions and forces the government to trial, the government will appeal her ruling to the Ninth Circuit. That’ll take a year. Maybe two. Then if the Ninth Circuit says we can have a trial, we have to get a trial date, which could take a year. Then we have to try the case and win it. And if we win it, the government can appeal that, too. The case could go on for years. Brandon needs money now. This case has ruined his practice. Who’d hire a lawyer who’s been in jail as a suspect in a mass murder case? People who are looking for a lawyer don’t want to hire one with that kind of baggage.”
“And the Ninth Circuit can throw the case out for any reason they can drum up,” Michele said, “or for no real reason at all. Then Brandon and Mona will have lost their chance for what might have been a decent settlement.”
“They’re buying us off,” Brandon said. “The people ought to know what the FBI did to us. The people need to know that it can happen to them.”
But Brandon and Mona couldn’t make an intelligent decision until they knew what kind of money the government was actually offering. And what were the chances of getting a decision from Judge Aiken that the Patriot Act was unconstitutional? After weeks of negotiations the government finally offered $2 million to Brandon and his family—and the government would destroy its documents relating to its electronic surveillance and return all seized physical materials to the Mayfields, and our right to contest the Patriot Act would be fully preserved. Before we agreed, I insisted on one additional demand: The government must publicly apologize to the Mayfields for its wrongful conduct.
The government agreed.
The case was settled.
I was stunned.
The infallible FBI admitted it had been wrong and would apologize. I thought that was pretty good going—the first apology from the United States I’d ever heard of, and the only one I’ve heard of since. For Brandon and Mona, money would not heal wounds to the soul. But money is the only poultice a money system provides. Nothing salves such wounds. Yes, time fades the scars, but the scars are permanent.
We said to the press, “The Patriot Act is decidedly not patriotic, for it is the first step by the Bush Administration to weaken our sacred civil rights to be secure in our homes.”
Then one day we found ourselves once more in front of Judge Ann Aiken arguing the constitutionality of the Patriot Act, as was our right under our settlement agreement with the government. I argued to the judge in the same way I would argue to jurors. It’s the only way I know how to argue. Yes, I hear it frequently from judges who admonish me, “We are not jurors, Mr. Spence. We are judges.”
The problem is that more than a few judges think that when they are anointed and ascend to that seat on high, some unidentified power causes their humanness to disappear and replaces it with a brand of lofty judicial insight that one can experience only if one’s posterior is affixed to the judge’s chair. Once in an empty courtroom I slipped up to the judge’s chair and sat down, firmly, and waited and waited. I never felt a bit smarter. Perhaps it was because I hadn’t donned the black robe.
I began my argument to Judge Aiken. “This day will enjoy a unique history in this court. We speak as patriots against an act which asserts by its title that if we are not willing to give up our sacred constitutional rights we are not patriots.” Judge Aiken looked bored. I hoped it was her defensive look—she was a judge, remember, not a juror.
I let the full power of my voice come rolling out, and I spoke the truth. “I recall as a boy when we were attacked by the Japanese, and every American made grave sacrifices. Women went to work in the war plants and built ships and planes. We planted Victory Gardens. Gasoline and other essentials were rationed. And a draft of every fit male, not a volunteer army, took our young men into harm’s way, and thousands willingly and bravely gave their lives in combat for our freedom.
“Today, in a so-called war against an amorphous enemy called ‘terror,’ the principal sacrifice we have been asked to give at the altar of fear is our constitutional rights. There has been no showing we are any safer, indeed, that we are as safe today as we were before we delivered, on a platter of fear, our blessed rights to the FBI and the Department of Justice by means of this fraudulently named legislation called ‘the Patriot Act.’”
I spoke the underlying truth. “In many respects the people are left in the most fearsome of all conditions—they are left against an enemy they cannot see. Indeed, who would tell them that the enemy might be their own government? The so-called Patriot Act is a law that was born of Power, and embraced by a frightened people under the empty promise that they would be safe if they gave up their freedom.
“One day the truth of all of this came to rest in a case we are here to discuss, the case of the Brandon Mayfield family.” I gave Brandon’s history, the farm boy honorably discharged from the army after serving his country, his marriage to a Muslim, to Mona. “That marriage was his only connection to a foreign power.”
I told how the FBI, without a traditional warrant, broke into the Mayfield home like common thieves—sneaking and peeking and pilfering—and how the FBI destroyed the security of that home, planted secret microphones, tapped their phones, and confiscated their computers, even the children’s.
I went on to say, “The fruits of this despotic, secret invasion of the privacy of this family were spread over countless government agencies across this land and abroad. In our FOIA [Freedom of Information Act] request the government admitted as recently as August 8, 2007, that they have 14,754 pages that are floating around in an uncontrolled no-man’s-land of federal agencies, and the government, although it took this material illegally, says it won’t destroy this material—that it won’t even try to do so.”
The government argued that the Mayfields had no standing to bring the case because they hadn’t been damaged. And if they’d been damaged, the government had paid for it—the $2 million it paid the Mayfields. Was there other damage? I asked. “What about those 14,754 pages of personal, private information concerning this innocent family that festers in the government’s files? Is that damage?
“‘Just trust us,’ the government says.
“We learned, according to a report from the Justice Department’s inspector general, that from 2003 to 2005 the FBI issued over 143,000 requests for searches through those so-called national security letters. The report also found that the Bureau has often used the letters improperly, often illegally.
“We have learned that the Department of Justice, through Alberto Gonzales, even came to the hospital bed of then–Attorney General Ashcroft, who was feeble and barely able to speak—their attempt to get him to sign off on a noncertified Domestic Surveillance Program authorizing spying on American citizens, which included allowing the government to engage in warrantless wiretapping. To his credit the AG refused.
“This is America!
“It is probable cause that protects us under the Constitution. Mere suspicion can never be the standard. Never.
“The requirement of probable cause is a perfect balance between liberty on the one hand and security on the other. To do away with probable cause is to deliver the justice system to an uncontrolled government that has proven itself over and over to be untrustworthy in safeguarding the rights of American citizens.
“Judge Victor Marrero of the federal district court in Manhattan recently wrote that he feared these intrusions into the role of the judiciary that would be ‘the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values.’
“We are seeking a declaration that the Patriot Act violates the Fourth Amendment. Indeed, the breaking and entering mentioned by Judge Marrero occurred in fact to the Brandon Mayfield family, and the government was given an ominous free pass to the hijacking of our constitutional values. What happened to Brandon can happen to any of us.
“Under our Constitution only the judiciary can approve such intrusions. But the Patriot Act takes this prerogative from the judiciary and reduces its role to that of a mere clerk. Judge Marrero wrote: ‘Congress and the executive must abide by the rule of law in times of domestic tranquility and of national crisis, in war and in peace.… Too often memory is short. The pages of this nation’s jurisprudence cry out with compelling instances illustrating that when the judiciary lowers its guard on the Constitution, it opens the door to far-reaching invasions of liberty.’”
I turned to one of our great freedom fighters. “Martin Luther King Jr. reminds us: ‘A time comes when silence is betrayal. I could never again raise my voice against the violence of the oppressed … without having first spoken clearly to the greatest purveyor of violence in the world today—my own government.’
“I ask this court not to be afraid to say it. Let Freedom Ring!”
Judge Aiken seemed unimpressed. But judges never applaud—not even for Darrow or Jesus, and I did not approach either.
Elden Rosenthal, our legal guru, argued with energy and intelligence all the impenetrable polemics about standing and jurisdiction and other such judicial vagaries. Judge Aiken was leaning forward, listening and taking notes and asking questions, and I thought, “Thank God for brains like Elden Rosenthal’s.” We were as different as fried chicken and chicken cacciatore. He not only understood the niceties of the law but was masterful in delivering solid, compelling legal arguments that would whet the appetite of the most jurisprudential gourmet. He ended with this jewel once voiced in Parliament in 1763:
“The poorest man may, in his cottage, bid defiance to all the forces of the crown. It may be frail. Its roof may shake. The wind may blow through it. The storm may enter. The rain may enter. But the King of England cannot enter. All his forces dare not cross the threshold of the ruined tenement.”
Some months later, Judge Aiken’s opinion came floating down from on high. It was built one brick at a time so that the appeals court could never blow it down. She wrote, “At issue here are two fundamental concerns: the safety of our nation and the constitutional rights of citizens. With the passage of the Patriot Act, these concerns are now placed in conflict.” Yes, she said it exactly.
She went on to write strong, agile, liberating words. “Now, for the first time in our nation’s history, the government can conduct surveillance to gather evidence for use in a criminal case without a traditional warrant, as long as it also has a significant interest in the targeted person for foreign intelligence purposes.” That meant the feds could break into your home at will.
She wrote more. “Since the adoption of the Bill of Rights in 1791, the government has been prohibited from gathering evidence for use in a prosecution against an American citizen in a courtroom unless the government could prove the existence of probable cause that a crime has been committed.”
Finally she said, “Our Founding Fathers anticipated this very conflict as evidenced by the discussion in the Federalist Papers. Their concern regarding unrestrained government resulted in the separation of powers, checks and balances, and ultimately, the Bill of Rights.… The Fourth Amendment has served this Nation well for 220 years.…
“Moreover, the constitutionally required interplay between executive action, judicial decision, and congressional enactment has been eliminated by the FISA [Foreign Intelligence Surveillance Act].… These constitutional balances effectively curtail overzealous executive, or judicial activity regardless of the catalyst for overzealousness. The Constitution contains bedrock that the framers believed essential. Those principles should not be easily altered by the expediencies of the moment.”
The judge was simply saying this: Because we think we’ve got a problem on our hands, say, with a few international killers who fly airplanes into our skyscrapers, we ought not throw the Constitution down the drain as if the damn thing is in the way of our safety. Besides, remember: We have nothing to hide.
Judge Aiken took on the government single-handedly. She wrote, “The defendant here is asking this court, in essence, to amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. This court declines to do so.
“For over 200 years, this nation has adhered to the rule of law—with unparalleled success. A shift to a nation based on extra-constitutional authority is prohibited, as well as ill advised.… Therefore, I conclude that 50 U.S.C. §§ 1804 and 1823, as amended by the Patriot Act, are unconstitutional because they violate the Fourth Amendment of the United States Constitution. Plaintiffs’ Amended Complaint for declaratory relief is granted.”
We won!
Michele Longo Eder wrote me, “When I heard the news I was in Anchorage. I stood outside the federal courthouse there in front of their great big American flag and sang ‘My Country ’Tis of Thee,’ ‘America the Beautiful,’ and ‘The Star-Spangled Banner’ at the top of my lungs.”
The question remained, would any song save Judge Aiken’s brave opinion from the Ninth Circuit Court of Appeals? On February 5, 2009, Elden Rosenthal argued our case, America’s case, soundly and persuasively before the Ninth. Ten months later, the court delivered its judgment.
Consider this bit of irony: Our government was our opponent.
Who is our government?
We, the people, of course.
Has our government been seized by a power that no longer answers to the people?
By reputation the Ninth Circuit Court of Appeals is a reasonably friendly, liberal court. The government argued that we had no standing and that Judge Aiken was without jurisdiction. The government made the anemic argument that the Mayfields were not damaged by the government’s failure to destroy the 14,754 pages that remained in the uncontrolled no-man’s-land of federal agencies, and therefore Judge Aiken had no jurisdiction. The Ninth did not contradict Judge Aiken’s brick-built opinion. It simply trotted around the end.
I’ve struggled through the opinion numerous times and still do not understand its reasoning. But here is what the judges did say in December of 2009: “We agree that Mayfield suffers an actual, ongoing injury, but do not agree that a declaratory judgment [which was the kind of case the government and we stipulated we would bring] would likely redress that injury. We therefore reverse the judgment of the district court with regard to standing.
“We also vacate the district court’s judgment on the merits and do not address the question of whether the challenged provisions of FISA, as amended by the Patriot Act, are unconstitutional.” In other words, the judges didn’t disagree with Judge Aiken or us. They just said, in effect, so you were injured. So what? You didn’t show that your case before Judge Aiken would give you any relief—something like that. The chirping chickadees at my bird feeder made more sense.
But perhaps we should give the Ninth Circuit Court a break. Perhaps they are wiser than we think. Perhaps they were saying, “Yes, the Patriot Act may be unconstitutional. But if we go down that street the government will take the case to the U.S. Supreme Court, and a majority of that court does not appear to cherish people’s rights very much.” Perhaps the Ninth was saying, “Let’s be patient. Let’s wait until a more people-oriented Supreme Court comes into being.”
Elden Rosenthal was exactly right in his statement to the media: “The court ducked the issue by ruling on a technical basis having to do with standing. We strongly disagree with the appeal court’s decision. The law is not always just, the courts are not always right. What is right here is that American citizens are entitled to protection from an oppressive government. What is wrong here is that that right was not provided.”
Nevertheless, we appealed to the U.S. Supreme Court, but on November 10, 2010, that court said, in effect, “Go away, little folks.” The judges denied certiorari. Those fancy legal words mean the high court judges refused to open the court’s doors to us.
So, in the meantime, if you hear a noise downstairs at Christmas time, it may not be Santa stuffing your stockings. It may be your own government sneaking and peeking without a search warrant based on probable cause to see if they can make a case against you, an American citizen.
* * *
After it was all over, I asked Mona, “How did all that horror affect your kids?”
“They’ve had their trouble,” she said. “It changed them in ways. They lost their innocence. They don’t talk about it. It’s too frightening.”
“And Mona, how about you?” I asked.
“I try not to think about it either. But it makes me distrust everyone. I never used to be like that.”
“And Brandon?”
“He won’t say how he’s suffered. Like servicemen who’ve been in the war.” She lit a Camel and blew out the smoke. “The police in Spain saved us from our own government,” she said. “If it hadn’t been for the Spanish police Brandon would be long dead, and Lord knows what would have happened to us.”
“We need a lot of luck in this life,” I said.
“Praise Allah,” she said. Her voice sounded happy. I thought at her core she was a happy woman.