MATRIX: The cop said "What are you going to do if we violate all your constutional rights?"

[Doug Harms]

 **
*Eugene Weekly*
*October 11, 2007*
**
**
*Mayfield's Vengeance
**Maligned Oregon lawyer takes on PATRIOT Act
*BY GARRETT EPPS

*EDITOR'S NOTE: The following story was originally published by
Salon.comand is being used with permission.
*

"Someone must have slandered Joseph K," begins Franz Kafka's classic novel *The
Trial,* "for one morning, without having done anything truly wrong, he was
arrested."

Last week America's own Joseph K., the terrorist who was not a terrorist,
got a little more revenge on the government that had persecuted him. Brandon
Mayfield, falsely accused of involvement in the Madrid train bombings of
2004, has already collected a hefty cash settlement; on Sept. 26, a federal
judge in Portland ruled that the two PATRIOT Act provisions the government
had used against him violate the Constitution. Though the ruling will be
strongly challenged on appeal, its larger importance may be as another straw
in a judicial wind blowing against the Bush administration's contemptuous
treatment of the Constitution and the courts.

These days, Mayfield lives much as he has for the past decade or so,
practicing family law from a small solo office next to a strip mall on the
southern edge of Portland. He is a slight man, 41 years old, who likes to
take his lunch at a nearby Middle Eastern restaurant. In many ways, what's
most interesting about Mayfield is how utterly unexceptional he is. He was
born in Kansas and got his law degree from Washburn University in Topeka. An
Army veteran, he is married with three children and lives with his family in
a nearby suburb with the homey name of Aloha.

Almost the only vaguely exotic thing about Mayfield is his religion: He is a
Muslim convert and belongs to a local mosque. But like Alexis de
Tocqueville, the 19th-century French writer whom he likes to quote and who
helped define the American spirit, Mayfield worries that in a democratic
system, the tendency of government will be to augment its power at the
expense of minorities.

"I'm suspicious of government anyway," he said in an interview last week.
And it's not hard to conclude that Mayfield's one deviation from the norm,
the thing that makes him a minority, explains why, for a few weeks in 2004,
he was one of the most famous people in the world.

On May 6, 2004, FBI agents descended on his law office, his home, and the
family farm in Kansas to search for evidence that Mayfield was a terror
mastermind. Media leaks let it be known that he was responsible for the
Madrid train bombings of March 2004, which killed 191 people. The evidence
was said to be a fingerprint found on a plastic bag of detonators at the
scene. Federal agents threw Mayfield into the Portland city lockup not as a
defendant but as a "material witness."

But not only had Mayfield been far from Madrid at the time of the bombing,
he hadn't even left the U.S. since 1994. The FBI, however, insisted that his
Army fingerprint matched a digital photo of the print from the Madrid bag.
The Spanish police, who had the original fingerprint, were never convinced
that Mayfield's was a match. But that didn't stop the FBI from swearing to a
judge that it was.

The case collapsed when, after Mayfield had been held for two weeks, the
Spanish police identified an Algerian, Ouhnane Daoud, as the real holder of
the fingerprint. The feds released Mayfield.

Then the payback began. Gerry Spence, the Jeremiah Johnson of America law,
ambled down from the Wyoming mountains to represent Mayfield in a
civil-rights lawsuit against the government. *[Editor's note: Elden
Rosenthal, highly respected Portland civil rights lawyer, briefed and argued
the case with Spence. He's well known in Eugene courtrooms for his civil
rights advocacy.]*

The FBI apologized and gave Mayfield a $2 million settlement. Mayfield
agreed to waive all his personal claims against the government and specific
agents, but he insisted on retaining one claim: that two provisions of the
PATRIOT Act were unconstitutional on their face.



In the weeks before his arrest, Mayfield's wife, Mona, repeatedly came home
to find the deadbolt locked on their house even though no one in their
family ever used it. Sometimes she would feel an eerie sense that someone
was in the house. She would walk through their home calling the family cat,
Mayfield recalls, "not because she wanted the cat to come, but because she
wanted to let any intruders know she was coming." In general, the entire
family began to suspect that someone was going in and out when they were not
at home. Mayfield, who had heard of federal investigations among the Muslims
of Portland, suspected it was law enforcement. "If it was a burglar," he
recalls thinking, "why didn't they take anything?"

And in fact, FBI agents, using a warrant issued under the Foreign
Intelligence Surveillance Act (FISA), had begun to enter Mayfield's home and
office surreptitiously, photographing papers, downloading hard drives and
planting listening devices. This kind of warrant is known as a "sneak and
peek" and does not require any notice to the target of the surveillance.

When FISA was passed in 1978, the government could obtain "sneak and peek"
warrants only when it certified to the secret FISA court that eavesdropping
on foreign agents was "the purpose" of the surveillance. The Justice
Department was careful to segregate this type of intelligence information
from ordinary law-enforcement proceeds, which were gathered under the Fourth
Amendment's protections against "unreasonable" search and seizure. Under the
Fourth Amendment, a law-enforcement warrant must be supported by "probable
cause" — in essence, good reason to believe that the target has committed a
crime.

The PATRIOT Act did away with this separation. Now foreign intelligence need
only be "a significant purpose" of the surveillance — and the feds are free
to share the information thus gathered with any part of law enforcement.
This new tool gives the government a much broader power to investigate
citizens without meaningful court review and use against them the evidence
it acquires.

Those two provisions — the authorizations for secret searches and secret
wiretaps against Americans — formed the subject of Mayfield's remaining
claim. And on Sept. 26, District Judge Ann Aiken held that both provisions
violated the Fourth Amendment. In place of its specific guarantees, she
wrote, "the people are expected to defer to the Executive Branch and its
representation that it will authorize such surveillance only when
appropriate." She added that the government "is asking this court to, in
essence, amend the Bill of Rights, by giving it an interpretation that would
deprive it of any real meaning. This court declines to do so."



In order to reach the Fourth Amendment issue, Aiken had to find that
Mayfield and his family had what lawyers call "standing" to sue the
government. In essence, that means that, despite the settlement, some live
"case or controversy" still exists. Mayfield argues that the dispute
continues because the government has the information it seized from his home
and office, and there's no guarantee that it won't use that information
against him or, as it apparently did during his 15 minutes of fame,
selectively leak it to the media. And beyond that, Mayfield says, there were
confidential legal files in the office. "What if I have clients who were
subject to a FISA search?" he asks.

The judge found "standing" by reasoning that a decision in Mayfield's favor
would at least put the government on notice that it should not misuse the
information.

That part of the ruling will surely be contested before the Ninth Circuit
Court of Appeals. In addition, there is another case flatly disagreeing with
Aiken's — a mysterious decision titled "In re Sealed Case," issued in 2002
by the highly secretive Foreign Intelligence Surveillance Court of Review
(called "the FISCR"). This court meets at an undisclosed location, and only
the government is a party to its cases. When the Foreign Intelligence
Surveillance Court itself turns down a government request for a warrant, the
government (but no one else) may appeal to the FISCR, and if it loses in the
FISCR, the government (but no one else) may appeal to the U.S. Supreme
Court.



Not long after the PATRIOT Act changed the "purpose" requirement, the FISC
issued an order requiring the government to continue to segregate the
information to prevent misuse by law enforcement, holding that those
measures were needed to protect citizens against a violation of the Fourth
Amendment. The FISCR reversed that decision, holding that "the procedures
and government showings required under FISA, if they do not meet the minimum
Fourth Amendment warrant standards, certainly come close" and that the
amended act "is constitutional because the surveillances it authorizes are
reasonable."

But that was then, and this is now. Just as the tide of public opinion has
turned against the Bush administration, so does the tide of judicial
approval seem to be running against it. While Mayfield's motion was pending,
another federal court, in New York, held that the PATRIOT Act's provision
allowing investigators to obtain phone and other business records using
"national security letters" is also unconstitutional.

Even the Supreme Court of Chief Justice John Roberts has recently shown
heightened concern about the administration's conduct of the war on terror.
Last April, the court denied review of the law stripping courts of
jurisdiction over Guantánamo detainee challenges. But two months later, in
an all-but-unprecedented move, the court reversed itself and granted review
— apparently because of an affidavit from a military lawyer stating that the
detainees are receiving only a travesty of due process.

By repeatedly lying to the nation and to the courts, by extending government
secrecy to new heights and by pushing its constitutional and statutory
authority to the furthest imaginable limits, the Bush administration has
forfeited the trust of the courts. Judges of all political stripes simply no
longer believe government assurances. Trust us, the government said,
Mayfield's the guy; he wasn't. Trust us, we won't abuse national security
letters; they did. Trust us, we don't torture; they do.

Harvard professor Jack Goldsmith, a conservative and a Bush appointee, is
the man who withdrew the infamous "torture memos" that apparently authorized
cruel and inhuman interrogation by soldiers and spies. In his recent book, *The
Terror Presidency*, Goldsmith writes that Bush, unlike other strong wartime
presidents, has repeatedly refused to consult with Congress, defer to the
courts or make any concession even to public opinion. "He has instead relied
on the hard power of prerogative," Goldsmith writes. "And he has seen his
hard power diminished in many ways because he has failed to take the softer
aspects of power seriously."

This diminution suits Brandon Mayfield fine. Behind his desk are two framed
posters, made at a local copy shop, of the Bill of Rights. Black-clad
federal agents worked directly beneath them, he notes, as they ransacked his
computers and his clients' confidential files in a fool's quest for a
Spanish bomber.



Mayfield is now working on his own account of the events of 2004, and he
spends other free time reading the history of the Constitution and the Bill
of Rights. The Constitution guarantees every American the right to choose a
religious belief even if it's one the government does not approve of. And
it's impossible not to believe that Mayfield's spiritual choice is what
landed him in prison, branded a mass murderer, on the basis of phony
assertions and faked "evidence."

Mayfield's prescription for what ails the country is as straightforward as
most other things about him. It's the Constitution.

"We have a perfect balance between liberty and security, between criminal
investigation and privacy. It's called probable cause," he said. "We ironed
out these issues a long time ago. That's why we're such a wonderful
country."



*Garrett Epps is the Orlando John and Marian H. Hollis Professor of Law at
the UO and has published numerous books, scholarly articles and articles for
general audiences in the field of constitutional law and civil rights. In
2007-2008, Epps is the Wayne Morse Center for Law and Politics Resident
Scholar, and his most recent book, *Democracy Reborn: The Fourteenth
Amendment and the Fight for Equal Rights in Post-Civil War America *, is a
finalist for an Oregon Book Award. A novelist and former journalist,
Professor Epps is a former staff writer for the *Washington Post*, and has
also written for, inter alia, *The New York Times*, *The New Republic*, and
*The New York Review of Books*.*
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/religionlaw/attachments/20071014/f909dfd0/attachment.htm