More Reasons for Brandon Mayfield's Incarceration

Brandon Mayfield is the Portland, Oregon lawyer and Muslim convert who spent two weeks in jail, May 6-20, as a result of a mis-identified fingerprint seeming to link him to the Madrid bombings on March 11, 2004. I attempted to show in "If You Are Muslim, You Are Suspect," that his "many connections to militant Islam and the global jihad" made it sensible to focus on him as a suspect.

	Brandon Mayfield

Now, four months after he was released from custody, the U.S. Attorney in Oregon, Karin Immergut, has publicly presented further evidence to explain her office's suspicions about Mayfield. Her 4,700-word "Reply Memorandum in Support of Motion to Amend Order Requiring Destruction of Seized Items," dated Sept. 13, 2004 (and not online), explains how, pursuant to court-authorized searches, the government obtained a variety of evidence (and, the memo argues, that it needs to keep a copy of the evidence to respond to possible future litigation by Mayfield). The memo classifies the evidence against Mayfield into several categories (which I preserve as presented, with the exception of adjusting some faulty numbering):

A computer in Mayfield's residence had:

1. been used to research airline schedules for travel from Portland, Oregon to Madrid, Spain, in September and October 2003;

2. accessed websites marketing rental housing in Spain in the fall of 2003;

3. accessed a number of websites based in Spain, including a website apparently sponsored by the Spanish national passenger rail system – the target of the March 11, 2004 bombings;

4. been used to perform a "Google search" regarding the phrase "target practice at home;" and

5. been used to specifically access a FAQ ("frequently-asked question") contained on "expedia.com" relating to the use of a "credit card with a billing address outside the U.S." for payment for travel services.

In addition, during the search of Mayfield's home, agents discovered, among other items:

6. a handwritten notation of a telephone number in Spain;

7. virulently anti-Semitic articles printed from the internet which appeared to blame Jewish people for various world problems;

8. pilot training logs showing Mayfield's experience as a small aircraft pilot in the 1980s; [a footnote here adds that "Al-Qaida has in recent years sought to recruit individuals with piloting skills."]

9. a book chronicling the development of the Al Qaida network;

10. 2 firearms; and

11. classified national defense documents relating to a U.S. weapons system.

In the court-authorized search of Mayfield's office, agents found:

12. a post-September 11, 2001 letter, apparently written by Mayfield, expressing support for the Taliban. [DP addition: It stated, "Who is America to bomb the Taliban because they don't like Afghanistan's law? All I say that Americans should think twice about the example you are setting on the rest of the countries"]

In the court-authorized search of Mayfield's safe deposit box, agents found:

13. $10,000 in cash, all in one-hundred dollar denominations, strapped in five two-thousand dollar increments with straps dated November, 2002. This large quantity of cash seemed inconsistent with the apparently limited income generated by Mayfield's law practice (which appeared to be under $25,000 per year adjusted gross income.) Also found in the safe deposit box were current passports for Mayfield's children and an expired passport for his wife.

While "there may be innocent explanations for all of these facts," Immergut concluded in the court filing, "this evidence demonstrates that the government and its agents were acting in good faith when they continued the material witness investigation and sought Mayfield's continued detention after his initial arrest." That makes good sense to me. (September 20, 2004)

Feb. 19, 2005 update: One of the circumstantial reasons I gave in my original article for focusing on Mayfield was that "Someone in Mr. Mayfield's house was in telephone contact with Perouz Sedaghaty (a.k.a. Pete Seda), director of the U.S. office of the Al-Haramain Islamic Foundation, a number of whose foreign branches have been designated as terrorist organizations." Well, on Feb. 17, Perouz Sedaghaty was one of two persons (the other being Soliman Buthe) indicted by a federal grand jury on charges of conspiring to defraud the U.S. government by concealing efforts to funnel $150,000 to jihadists in Chechnya.

March 30, 2005 update: The U.S. Department of Justice, in a letter dated March 24, acknowledged for the first time that Brandon Mayfield was the target of secret searches into his home as part of the probe into the Madrid bombing. Under the authority of the Foreign Intelligence Surveillance Act of 1978, attorney Sara Clash-Drexler, explained (as reported by the Oregonian), that

agents copied three hard drives from three desktop computers and one loose hard drive; digitally copied several documents in his home; took 10 DNA samples and preserved them on cotton swabs; and seized six cigarette butts for DNA analysis. Agents also took about 335 digital photographs of Mayfield's house and property.

Comment: Again, it is reassuring to learn how seriously law enforcement took this case, even if it turned out to be barking up a wrong tree.

July 14, 2005 update: Before Mayfield's arrest, Portland FBI spokeswoman Beth Anne Steele sent an e-mail to her counterpart in Los Angeles in which she referred to Mayfield as a "Muslim convert."

July 15, 2005 update: Mayfield's case against the U.S. Department of Justice and the USA PATRIOT Act begins with a pretrial hearing today in Portland, Oregon. The issue at hand is perfectly clear – was the government biased in selecting his fingerprint? The working out of this issue will be very complex, however.

Start with the DoJ reply to Mayfield's claim: "Mayfield was not arrested because he was a Muslim, but rather because fingerprint examiners believed his print to match the Spanish print." One reason the examiners might have believed his print matched better than the other ones they had in front of them was the circumstantial evidence of Mayfield being Muslim. (Of 20 possible matches, his was only 4^th best, nonetheless, he was the one arrested.) To which I say, they used their common sense and good for them. But common sense is not official government policy, so the examiners will probably try to hide their real thought processes. Yet again, I repeat: one cannot win a war without naming the enemy.

July 16, 2005 update: The opening hearing of Mayfield's civil rights lawsuit took place. Noelle Crombie reports in the Oregonian that the Justice Department's trial lawyer, Richard Montague, responded to Mayfield's claim of being targeted as a Muslim. He acknowledged that the statement which served as the basis for a search warrant of Mayfield's home did mention Mayfield's Muslim faith, and that this was indeed relevant information. Religion may be included when applying for a warrant: "This is something law enforcement must take into account" because terror investigations oftentimes show that "people who committed these offenses do so in [pursuit of] a perverted" idea of Islam. Montague denied, however, that federal agents focused on Mayfield only because of his religion: "This does not mean he is being singled out."

In reply, Mayfield's lawyers said agents targeted Mayfield because he is Muslim, because his wife is Egyptian-born, because the family attends a mosque, and because Mayfield had connections to one of the "Portland Seven" terrorists. They also referred to the Beth Anne Steele e-mail (see July 14, 2005 update), noting that "The only description of Mr. Mayfield is that he is a Muslim. It permeates the investigation."

Jan. 6, 2006 update: The Justice Department's inspector general, Glenn Fine, issued a mostly-classified 273-page report on errors made in the Mayfield case. He faulted the FBI for sloppy work and he noted the role of religion in convincing FBI fingerprint experts that Mayfield's prints matched the one found on a bag in Spain. But he rejected Mayfield's basic contention: "We did not find any evidence that the FBI misused any of the provisions of the Patriot Act in conducting its investigation." Here is the complete section on "The Role of Mayfield's Religion in the Identification," from the unclassified executive summary of the report:

The OIG [Office of the Inspector General] also investigated whether the FBI fingerprint examiners were aware of and improperly influenced by knowledge of Mayfield's religion when they made the identification of LFP 17. We determined that the FBI examiners were not aware of Mayfield's religion at the time they concluded that Mayfield was the source of LFP 17. The records available to the examiners did not reveal his religion, his marriage to an Egyptian immigrant, or his representation of other Muslims as an attorney. The OIG found no evidence that the FBI Laboratory had knowledge of Mayfield's religion until the FBI Portland Division learned this fact in the early stages of the field investigation, after the identification had been made and verified by the FBI Laboratory.

However whether Mayfield's religion was a factor in the Laboratory's failure to revisit its identification and discover the error in the weeks following the initial identification is a more difficult question. By the time the SNP issued the April 13 Negativo Report, the Laboratory examiners had become aware of information about Mayfield obtained in the course of the Portland Division's investigation, including the fact that Mayfield had acted as an attorney for a convicted terrorist, had contacts with suspected terrorists, and was a Muslim. One of the examiners candidly admitted that if the person identified had been someone without these characteristics, like the "Maytag Repairman", the Laboratory might have revisited the identification with more skepticism and caught the error.

The OIG concluded that Mayfield's religion was not the sole or primary cause of the FBI's failure to question the original misidentification and catch its error. The primary factors were the similarity of the prints and the Laboratory's overconfidence in the superiority of its examiners. However, we believe that Mayfield's representation of a convicted terrorist and other facts developed during the field investigation, including his Muslim religion, also likely contributed to the examiners' failure to sufficiently reconsider the identification after legitimate questions about it were raised.

Mayfield responded by saying that the IG's report confirms he "was a victim of religious profiling."

Jan. 11, 2006 update: Karin J. Immergut, U.S. attorney for the district of Oregon, points out in a letter to the Oregonian that the U.S. Department of Justice's Office of Professional Responsibility conducted an investigation into the conduct of the prosecutors in her office and completely exonerated them (a fact the Oregonian chose not to report).

Your readers are entitled to know that the Office of Professional Responsibility found that the prosecutors in my office: 1) "acted appropriately under all the circumstances"; 2) properly employed the material witness statute; 3) correctly concluded there was probable cause to support Mayfield's arrest; 4) submitted an affidavit to the court that "adequately conveyed the relevant information"; and, 5) reasonably relied upon the FBI to verify portions of the affidavit.

Jan. 15, 2006 update: David Reinhard, a columnist with the Oregonian, reviews the Mayfield case and comes to the sensible conclusion that it may show

a kind of bias, but it's not an anti-Muslim bias. It's a bias against a Muslim who had represented a member of the Portland Seven and had contact with suspected terrorists -- and had a fingerprint similar to one found in a terror bombing. It was a not-unreasonable bias against Mayfield. A tough break for him, but nothing to make a federal case of.

Mar. 26, 2006 update: That report by Glenn Fine, inspector-general of the Department of Justice, mentioned in the Jan. 6, 2006 entry above is now publicly available in redacted form. Titled "A Review of the FBI's Handling of the Brandon Mavfield Case," it is in all 330 pages long, with only minor parts blacked out. Mark Larabee and Ashbel S. Green of the Oregonian do a good job of summing up its contents at "One mistaken clue sets a spy saga in motion."

Nov. 30, 2006 update: The FBI has agreed to settle with Mayfield by paying him US$2 million and offer him a formal apology. The federal government "regrets that it mistakenly linked Mr. Mayfield to this attack."

Comment: That comes out almost exactly $100 per minute for the two weeks. Wonder what I can do to get wrongly imprisoned and get that kind of compensation.

Sep. 26, 2007 update: U.S. District Court Judge Ann Aiken reviewed Mayfield's case against the government and ruled in his favor, gutting a portion of the USA PATRIOT Act. Key excerpts:

Prior to the Patriot Act, the government was required to certify that the primary purpose of its surveillance was to obtain foreign intelligence information. The Patriot Act now authorizes FISA [Foreign Intelligence Surveillance Act] surveillance and searches as long as a significant purpose of the surveillance and searches is the gathering of foreign intelligence. (Page 19)

The practical result of this amendment, objected to by plaintiffs, is that in criminal investigations, the government can now avoid the Fourth Amendment's probable cause requirement when conducting surveillance or searches of a criminal suspect's home or office merely by asserting a desire to also gather foreign intelligence information from the person whom the government intends to criminally prosecute. The government is now authorized to conduct physical searches and electronic surveillance upon criminal suspects without first proving to an objective and neutral magistrate that probable cause exists to believe that a crime has been committed. (Pages 19-20)

Aiken concludes that changes made by the Patriot Act in this regard "are unconstitutional because they violate the Fourth Amendment of the United States Constitution." (Page 44)

Comment: At this point, Mayfield has a slam-dunk with $2 million settlement and what appears to be a decision that guts the Patriot Act. For someone who think the Bush administration knew in advance about 9/11 compares the U.S. federal government to Nazi Germany, this must be a happy moment. For the rest of us, it is a bitter one.