In other words, while an ordinary search warrant demands that the police show probable cause to believe that criminal evidence will be found, a FISA warrant mandates probable cause only that a target is somehow in coordination with a foreign entity that can include a government or a terrorist organization.10 This lower threshold, reduced further by amendments to FISA following 9/11, has permitted wide-scale surveillance of people without substantial evidence of criminal behavior.
In addition, a criminal wiretap order requires agents to restrict interception to communications involving the alleged crime, whereas FISA practices allow constant monitoring and only later, when tapes are played and transcripts made, is the intercepted material narrowed by indexing and logging. These are called “minimization procedures,” designed to diminish intrusion into private lives, but they kick in only after the intrusion has occurred.
FISA also contains a more relaxed requirement for timeliness: To get a criminal wiretap order, for example, police have to show probable cause (known in the vernacular as “P.C.”) that a phone line has been used for a crime within the last forty-eight to seventy-two hours, and if they can’t do so, a judge will often tell them to “freshen up the P.C.” FISA surveillance invites more flexibility, according to Michael E. Rolince, who headed the FBI’s International Terrorism Operations Section on 9/11: “You can say, ‘The Soviets used this safe house on Bleecker Street three years ago; let’s see if it’s been reactivated.’ ” Rolince’s reading may take liberties with the law, which actually requires that “each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.”11 But nobody can get into a Foreign Intelligence Surveillance Court hearing to contest an FBI interpretation.
Because FISA warrants are secret and sweeping—authorizing bugging, wiretapping, and clandestine searches more typical of dictatorships than democracies—Congress initially required that “the purpose” be to gather foreign intelligence rather than criminal evidence for prosecution. Over the years, federal courts and the Justice Department translated this into “the primary purpose,” which prevented FISA from becoming a substitute for the ordinary criminal search warrant or wiretap order. The aim was to mandate that the secret FISA tool be used only where prosecution was incidental to intelligence gathering and thereby preclude law enforcement from evading the Fourth Amendment.
Furthermore, to guard against judges throwing out evidence, administrative walls were erected in the mid-1990s under Attorney General Janet Reno to prevent intelligence officers, whether in the FBI, the CIA, or other agencies, from sharing information with criminal investigators who were digging up evidence for trials.12 These barriers were designed to reinforce the limits on FISA by blocking criminal investigators from expropriating FISA as their tool of research—to prevent cops from relying on spies to do end runs around the Constitution’s stringent warrant requirements. But they also created what officials came to see as absurdities.
“In terrorism cases, this became so complex and convoluted that in some FBI field offices, FBI agents perceived walls where none actually existed,” said Rolince. “In fact, one New York supervisor commented that ‘so many walls had created a maze,’ which made it very difficult for the criminal investigators.”13 The confusion impeded information-sharing that might have instigated a search for one of the nineteen September 11 hijackers, Khalid al-Mihdhar. Among many communications failures in his case was a mistaken belief by CIA and FBI intelligence analysts that the wall barred them from conveying reports to agents who were doing a criminal investigation of his role in the USS Cole attack.14 Jealousy over jurisdictions may have played a role as well: When an FBI agent working in the CIA’s bin-Laden office learned that Mihdhar had a multiple-entry U.S. visa in his passport, his message to FBI headquarters was blocked by a senior CIA official.15
“You were moving bricks in the wall,” Rolince told me. “If I’m doing a wire on you because I think you’re doing espionage, and get something on money laundering, I had to go through hoops to walk down the hall and tell the agents investigating money laundering.” The hoops included approval from the attorney general or another top official, and as a result, Rolince claimed, “dozens of cases were not pursued.” Aside from the Mihdhar catastrophe, he couldn’t come up with any examples, and few others have come to light. Other hijackers were missed because of turf battles, poor intelligence gathering, and miscommunication, not because of the wall.
There were examples of the opposite—of the FBI breaking the rules—as disclosed in 2002 by the Foreign Intelligence Surveillance Court, whose judges had themselves acted as the “wall.” They cited “an alarming number of instances” in which the information barrier—and the court—had been evaded by the FBI in New York alone, before the Patriot Act amendments. The bureau had given unauthorized FISA information to federal prosecutors in four or five cases, the judges said. In field offices where separate intelligence and criminal squads were supposed to be operating, “all of the FBI agents were on the same squad and all of the screening was done by the one supervisor overseeing both investigations.”16 As a result, the commission that investigated 9/11 reported, “the court began designating itself as the gatekeeper for the sharing of intelligence information.”17
Now agents can legally walk down the hall.18 Six weeks after September 11, Congress hastily removed the wall and downgraded foreign intelligence from “the purpose” of a FISA warrant to “a significant purpose.”19 This allowed criminal investigation to become the leading motive for acquiring secret and sweeping surveillance powers. With that change, the secret warrants have been used in ordinary criminal investigations unrelated to intelligence gathering or terrorism, including narcotics, white-collar crime, child pornography, money laundering, and blackmail.20
Those revisions, and many other amendments to various statutes, were contained in the law entitled the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, a mouthful designed for translation into a stirring acronym: The USA PATRIOT Act. Although it undermined some key constitutional protections, it passed with little debate by votes of 357–66 in the House and 98–1 in the Senate.21 Congress renewed most of it unchanged five years later, and extended it again in 2010.22
A decade or so before Brandon Mayfield’s life was upended by the Patriot Act, he served in the army as a platoon leader on a Patriot antimissile battery. The word “patriot” kept sailing through his world like a windblown poster. His youth could have been a patriotic painting by Norman Rockwell, as he described it, rooted in the black earth of Kansas where he helped his father, a combine driver, follow the harvest from farm to farm. “I had a wonderful childhood,” Brandon remembered, “jumping off of rope swings on the Arkansas River, putting pennies on the railroad tracks.”
It was a different Kansas then. “I know what’s wrong with Kansas,” he said in a sardonic take-off on the best-seller.23 “It’s gone from a populist place to a conservative place. My family was pretty liberal and always looked on the government with a certain suspicion, as did a lot of local farm families, didn’t want to look to the government for a handout. I always had this idea that we should be more free rather than less free. Let’s be very free and open, and I was always critical of new government rules, regulations, programs. And therefore it seemed odd to join the military … nobody in my family had ever been in the military.”
As he drew a sketch of himself, he might have been any decent, directionless middle-American kid in the 1980s, setting off without much of a compass. His parents were split up. He tried community college for a year, and “didn’t do so hot; I just wasn’t into my studies.” He loved his hometown of Halstead, which “is called the biggest little city in Kansas,” he said, “but it wasn’t big enough for my dreams.” So he enlisted “mainly because I wanted to see the world,” to fulfill the recruitment slogan’s promise. Maybe that’
s why so many enlistees come from small towns.
The world he got to see was one of discipline and structure, which appealed to him. It contained people from all over the country. It was largely a Republican world: “You know if you vote Republican you’re likely to get more funding for the branch that feeds your family.” It extended from Fort Lewis in Washington and Fort Bliss in Texas all the way to Fort Gordon in Georgia and bases in Germany and South Korea. It took him in and out of the army three times. He finished his B.A. at Portland State, in Oregon, was commissioned as a second lieutenant, and served as a military intelligence specialist, of all things.
Indirectly, the army gave him his wife and his religion, for it was while he was stationed at Fort Lewis that he found both. “I was somewhat an agnostic,” he recalled, “unconvinced that there was anything to organized religion.” But after meeting Mona, whose family had brought her from Egypt when she was five, he felt gradually drawn to Islam. “I was trying to figure out, answer the bigger questions of who we are and why we’re here.” And the Koran tied up loose ends, patched up the holes in his understanding. “There’s a saying in Islam that if you take one step to Allah, he’ll take two to you or come running to you.” Mayfield came to see in Islam the concept that free will and destiny could coexist. There is a divine plan, “but you are still accountable for your own actions.”
Having family and religion to organize his life, he now sought the professional pillar and found it in the law. The year he left the army, 1995, he picked up Mortimer J. Adler’s We Hold These Truths, and was taken by its discussion of the Constitution’s principles on the relationship between the people and their government. “The book talked about the notion of ordered liberty,” Mayfield recalled. “I liked that, looking at it that way.” He was intrigued by the prospect of learning more, and so he was drawn into learning the law.
For a constitutional history course at Washburn University School of Law in Topeka, he wrote a twenty-page paper entitled “Liberty” that documented “the erosion of our rights,” as he recalled, and the danger that government would “become a bloated bureaucracy and would give rise naturally to a police state. There is a tendency naturally to overpolice the citizens. We’re not subjects of the government, but more and more we tend to be seen that way.”
Such concerns drive some young attorneys into civil liberties work, but Mayfield settled for a tamer route as a sole practitioner on divorce, child custody, and immigration. These specialties seemed benign until one client’s name jumped out to FBI agents investigating Mayfield and reinforced their ill-founded suspicions: Jeffrey Battle, a black Muslim now doing eighteen years after pleading guilty as part of the Portland Seven group that tried to go fight with the Taliban in Afghanistan. Mayfield represented him in a child custody case: “I was just trying to get his son into the care of a responsible adult after he was arrested.”
JUNK FORENSICS
Eleven backpacks stuffed with explosives, fitted with copper detonators and set with cell-phone triggers, were strategically positioned on Madrid’s commuter trains during the morning rush hour of March 11, 2004. When ten of them blew up on four trains jammed with passengers, the concussions and shrapnel killed 191, wounded more than 1,400, and provoked a chain reaction of intrusive bungling by the FBI.
As rescue workers raced frantically to identify the living among the shattered bodies, the Spanish National Police sifted through the debris of glass and bones and twisted metal. They quickly discovered the eleventh bomb and disarmed it. Near a station, inside a stolen van, they found a blue plastic bag containing seven detonators like the one in the unexploded device.
The bag was covered with fingerprints, most of them partial or smeared. But two seemed clear enough to be useful, so they were photographed and sent as digital files on March 13 to Interpol, whose Washington office e-mailed them to the FBI laboratory in Quantico, Virginia.
The lab had a checkered reputation. For three decades, into the early 2000s, the FBI used junk science that purported to match bullet fragments at crime scenes with suspects’ boxes of ammunition on the theory that each batch was manufactured with lead containing unique proportions of trace elements. At first, bombarding the bullets with neutron beams, the lab measured antimony, arsenic, and copper; in later years, using spectroscopy, it added bismuth, cadmium, tin, and silver.
The measurements were accurate, but the theory was false, as the FBI itself discovered in 1991. Some bullets made fifteen months apart had identical contents, and variations could exist even within a single box. Yet the bureau continued doing the tests and introducing the results as evidence. When differences appeared within a lot, the lab simply relaxed its standards by increasing the range of tolerable variation to produce phony matches. FBI examiners testified in at least 250 state and local trials throughout the country, misleading jurors into believing in the precision of the matches, and helping put behind bars untold numbers of innocents who remain in prison today. Not until 2005, a year after the National Academy of Sciences produced a study debunking the entire theory, did the FBI finally stop dispatching its “experts” to court to tout the results of bullet-lead analysis. It failed to inform the defendants or their lawyers about the testing flaws, however, and has even opposed new trials.24 Many state and federal courts resisted defense requests to confront the crime-lab technicians themselves, until the Supreme Court ruled narrowly in 2009 that the examiners could be summoned to be cross-examined in trials.25
Various techniques of forensic analysis have proved unreliable. In the mid-1990s, personnel in the FBI lab’s Explosives Unit, Materials Analysis Unit, and Chemistry-Toxicology Unit were accused by a colleague of fabricating evidence and committing perjury in hundreds of instances, including high-profile terrorist cases. The whistle-blower, Frederic Whitehurst, a forensic analyst with a Ph.D. in chemistry, provoked a lengthy investigation by the Justice Department’s inspector general, Michael R. Bromwich, which confirmed only a minority of his allegations but found “significant instances of testimonial errors, substandard analytical work, and deficient practices.” Invariably, the “errors” were made in favor of the prosecution. They included alterations of Whitehurst’s reports by superiors, “inaccurate testimony” (a euphemism for perjury), incompetent examiners who were never relieved or reprimanded, analysts lacking “requisite scientific qualifications,” and examiners making categorical assertions beyond their expertise—usually to enhance the impression of a defendant’s guilt.
When Mohammed A. Salameh and others were tried for the February 26, 1993, bombing of the World Trade Center, for example, an analyst of explosives residue, David Williams, “gave inaccurate and incomplete testimony and testified to invalid opinions that appeared tailored to the most incriminating result,” the inspector general’s report declared. Undaunted by the fact that FBI chemists “did not find any residue identifying the explosive at the World Trade Center,” Williams testified that urea nitrate was used in an amount—about 1,200 pounds—that conveniently happened to fit the quantity he estimated defendants were capable of manufacturing. The report found his assertions “deeply flawed” and concluded, “His testimony about the defendants’ capacity exceeded his expertise, was unscientific and speculative, was based on improper non-scientific grounds, and appeared to be tailored to correspond with his estimate of the amount of explosive used in the bombing.”
He performed the same backwards reasoning in the Oklahoma City bombing case, where he “did not draw a valid scientific conclusion” when identifying the explosive used in the attack as ammonium nitrate fuel oil (ANFO), the investigation found. He relied not on forensic evidence from the scene “but rather speculated from the fact that one of the defendants purchased ANFO components.” So, because a defendant had bought the ingredients of ANFO, ANFO must have been used in the bombing. “His estimate of the weight of the main charge was too specific, and again was based in part on the improper, non-scientific ground of what a defendant had allegedly purchased. In other r
espects as well, his work was flawed and lacked a scientific foundation. The errors he made were all tilted in such a way as to incriminate the defendants.”
The lab seemed incapable of rigorous analysis. Another examiner, Richard Hahn, was found to have jumped to an unwarranted conclusion about the type of explosive that brought down an Avianca plane in Colombia in 1989. “We concluded that Hahn’s correlation of the pitting and cratering to a high velocity explosive within a narrow range of velocity of detonation was scientifically unsound and not justified by his experience,” the investigators declared.
And so on through multiple cases. The individuals who usually suffered from examiners’ mistakes were defendants, not the examiners themselves. But even when sloppy work resulted in an acquittal—and in one case, criticism of the examiner by a federal prosecutor—no self-correcting impulse was stirred. It took the lab six years to investigate the offending analyst, and then his supervisor coupled a verbal reprimand with a $500 check as an incentive bonus.26
While forensic evidence was not pivotal in every conviction, Bromwich thought that his voluminous investigation should have reopened some prosecutions. “Much to my shock, no cases were reversed or retried,” he told me. The FBI and the Justice Department insisted that the outcomes would not have been affected. Nor had defendants mounted sufficient challenges to the respected FBI lab in the first place. “The FBI had done such a good job of embellishing its myth that defense lawyers got weak in the knees,” Bromwich observed.
His report should have punctured the myth. The lab was infused with “a pro-prosecution bias, which is intangible,” he told me. “It’s not anything you find on paper. It’s not in documents; it’s almost in the air, so it was more a sense of things, when you talked to people and reviewed everything with a large lens.” He noted “an absence of a true scientific culture in the lab. These were agents, self-taught with inadequate training, with totally inadequate scientific peer review.”
The Rights of the People Page 24