To disguise their tactics and protect their “witness,” the agents booked Mayfield under the pseudonym Randy Taylor, and the FBI refused for a time to tell Mona where he was being held. It was in a county jail full of inmates, some dangerous, who wouldn’t be expected to greet a suspected terrorist with high-fives. Mayfield feared that they might learn the reason he was there.
“The guards would sometimes call me Brandon, sometimes Randy,” he said, “and it would make me nervous because I was worried I was getting closer to being exposed. I didn’t want any vigilante justice.”
Mostly he was alone in a cell. But there were moments of risk. “You have people jailed next to you who are maybe innocent like myself,” he observed, “but some are hardened. I was in a lockdown situation the first week with people who are most dangerous,” and in that week “I had an hour a day to walk the floor. Usually you’d walk with one or two other people on the floor. Some of them I was OK walking with, others I was very uncomfortable walking with.”
Little news penetrated the cellblock walls, fortunately. The television set in the middle of the common room was usually tuned to a country music station or to Black Entertainment Television, “and I was OK with that,” Mayfield said, but “occasionally somebody would go to a news channel, and I just prayed they didn’t have anything about me.”
Then one day as he sat on an upside-down trash can watching, with another prisoner behind him, there suddenly appeared “a short clip about me,” he said. “So this one guy, I could tell he had made the connection. He got up and went to his cell and his complete demeanor changed, and I figured it was just a matter of time until word got around.”
Mayfield’s most acute vulnerability came during transfers to and from court, when federal marshals “would put me in a jail cell for extended periods of time without any supervision, sometimes with one or two, sometimes with eight or nine.” Yet he was never attacked by prisoners, just “manhandled a little bit” by FBI agents and marshals.
“I had manacles on my feet, chains on my arms, and chains around my abdomen when I was transported from place to place,” he noted, and the chain between his legs once caught on the lip of a van’s door as he got out. “I tripped,” he said, “and barely caught myself before I broke my nose on the pavement. I sprained my wrist and hurt my shoulder,” and “this grumpy little marshal,” as Mayfield described him, “just stood there with a smirk and a smile, doesn’t help me get up.”
He endured insults from guards but no beatings. “I think the jailers for the most part were professionals,” he conceded. But “the toilets wouldn’t flush, you were sleeping there with your own feces,” and “some female jailer said when I complained about the toilet not flushing, ‘He’s just a crybaby.’ ” It got worse, but in ways that he labeled “too personal” to recount. “I felt the whole thing was an abusive, humiliating experience.… I was subject to strip searches: I couldn’t see my family without a strip search. You wouldn’t have a face-to-face—even with my attorney—without a strip search.”
During Mayfield’s two weeks inside, the FBI stood by its fingerprint match and the Spanish police stood by their denial, and the FBI would not be convinced of its error until a fragile trail of evidence in Madrid led the Spanish authorities to the man who had actually left the prints on the bag.
On April 3, when the Spanish police raided a suburban apartment to arrest alleged bombers, the suspects blew themselves up, leaving in the debris documents bearing the name Ouhnane Daoud, an Algerian whose fingerprints happened to be on file because of an immigration violation. Six weeks later, checking his prints against those on the bag, Spanish examiners made two matches: Daoud’s right middle finger had left LFP 17, they concluded, and his right thumb had made the other legible print. It was May 15, and Mayfield was in jail. On May 19 the police arrested Daoud, and the next day Mayfield was released to home detention while the FBI, trying to wipe egg off its face, pondered the Daoud, Mayfield, and latent prints.
On May 22, two FBI examiners arrived in Madrid, on yet another taxpayer-funded trip, this time to collect copies of Daoud’s ten-print cards, which they took to Quantico on May 23. An all-night reexamination was conducted by a team at the lab, which concluded that LFP 17 was of “no value,” a reluctant and partial retreat. Only in late June did the FBI finally concede that the prints on the bag were Daoud’s.
Could this happen again? The lab at Quantico may work more accurately now. It agreed to implement over one hundred recommendations for improving various technical and administrative procedures suggested by eight internal review teams.44 In response to my inquiries, however, the FBI declined to offer any evidence that it had taken any action against the agents and analysts who had cost an American his good name and his sense of security, and the taxpayers millions. Nor was the bureau willing to say that it had made good on its public pledge to review death-penalty convictions that had relied on fingerprints; officials were content to leave the impression that neither of these steps had been taken.45
More striking was the FBI’s statement the day a lawsuit by Mayfield and his family was settled by the Justice Department for $2 million and a formal apology. There could have been no more complete admission of guilt by the government, yet the head of the Portland FBI office, Robert Jordan, declared: “If a similar investigation was being conducted, and we were provided a fingerprint identification, we would do exactly what we did in the case of Mr. Mayfield. Of course we regret what happened to Mr. Mayfield, but again, we are proud of what we did here.”46 Proud?
Mayfield was cleared, but he was not released from the sleeplessness, the “mental distractions,” as he called them, the diffuse haze of anxiety. “I’m not as focused as I was before,” he said nearly three years later. “I’m not quite sure why. I was more driven, I was more into my work.” He now functioned less efficiently, he felt. “Once this has happened, you’re always wondering, is this going to happen again? Am I really safe now? Are they going to come knock in my door again? Is my family going to be thrown upside down in their lives? I try not to think about those things. You try to get on with your life.”
I asked if he had sought counseling, whether he might suffer from post-traumatic stress disorder. “PTSD?” he answered. “I don’t want to use that term. It would belittle the experience of others. I had sleep disorders for a long time. You’d awake in the middle of the night and think there was someone there.… It’s pretty traumatic, what happened, what you go through physically and emotionally. It’s probably hard for people to appreciate how it affects someone.” Nevertheless, he added, “I was the fortunate one, in jail for two weeks in shackles and chains, and under house arrest for a week. There are people for whom that goes on for months or years.”
But something was still going on, for the experience had planted insidious seeds of wariness. “I was suspicious of people I know. Were they informants? People I maybe trusted and maybe I shouldn’t have trusted them? They weren’t who they appeared to be?” He didn’t get the support that he needed from fellow Muslims, because many who had rallied behind the Portland Seven had felt shocked and betrayed by their guilty pleas after they’d tried to fight in Afghanistan. The same people could not shake misgivings about Mayfield, and he paraphrased their thinking: “Even though we think he’s innocent, how do we know?”
His practice suffered. “I lost clients at the time I was arrested,” he said, including a personal-injury case he was working on that day. “I had retainers I had to give back. I had to seek help from other attorneys.… I lost money immediately. The practice had to shut down. My wife helps as a part-time paralegal, but there was no way she could keep the office open.”
Even after his two weeks in jail, business didn’t exactly spring back to normal, in part because clients were afraid that he was still under surveillance. “When you practice in the area of immigration, it’s not unusual to have somebody come to you and say, ‘My spouse slipped across the border without documentation,’ ” Mayfield not
ed. “Sometimes people will tell you things that they will only say in confidence to an attorney or a priest.
“After I was arrested, I had a guy come to the office. He knew what had happened to me. He started to tell me a little bit about his case, he stopped and looked at me and said, ‘Before I go on, is your place bugged?’ I smiled and said, ‘I don’t know. I can’t say it isn’t.’ He said, ‘I’m pretty sure it is.’ We had to remove ourselves and go to a coffee shop and continue our initial client interview. I’ve had other people say they’re not comfortable because they think my office is bugged. There are lots of attorneys in the phone book.”
Some clients have less specific apprehensions. After a woman hired Mayfield to file a personal-injury lawsuit, she told him that a friend had advised: “ ‘You might not want to stick with Brandon because of all the baggage tied to him; it may affect the kind of settlement you can get.’ That client, to her credit, did stick with me, and I got a good result.” But he lost others.
Surreptitious surveillance never quite ends, at least inside your fears. The FBI “never told us,” Mayfield said, “where they placed the electronic bugging or cameras and recorders. To this date they haven’t told us where they put it, so we’re thinking that we’re still kind of violated, that they were listening to our most intimate conversations and watching our most intimate moves.” Even after being cleared, “I couldn’t help feeling I was being bugged and watched. I didn’t feel comfortable after coming home from jail talking to my wife in my living room. It took me a year to feel comfortable.”
Hiring a private contractor “to do what they call a military sweep” would cost $30,000, he learned, with no guarantee that all the bugs would be discovered, because “you cannot find evidence of a certain type of electronic bugging equipment if it’s there and not activated.” With their house having been invaded, he said, “We’re thinking of moving.” And they did.
As part of his financial settlement with the government, Mayfield retained the right to pursue a lawsuit challenging the constitutionality of the Patriot Act, and in 2007 won a ringing declaration from federal district court judge Ann Aiken that Section 218 of the statute, changing “the purpose” to “a significant purpose,” violated the Fourth Amendment by permitting search orders from the secret Foreign Intelligence Surveillance Court, without probable cause, that aimed not just at foreign intelligence but primarily at domestic criminal activity—just the kind of law enforcement the framers envisioned as requiring ordinary search warrants. “Now, for the first time in our Nation’s history,” she wrote, “the government can conduct surveillance to gather evidence for use in a criminal case without a traditional warrant, as long as it presents a non-reviewable assertion that it also has a significant interest in the targeted person for foreign intelligence purposes.”
Under the law, she noted, that assertion cannot be rejected by judges of the Foreign Intelligence Surveillance Court (FISC) unless it is “clearly erroneous,”47 a threshold so high that it’s virtually impossible to cross without hearing arguments from the target, who is completely unaware that he has become so interesting. Congress had cleverly constructed a closed circle of executive power.
Mayfield’s case was a textbook example of its abuse. “Here,” Judge Aiken wrote, “the government chose to go to the FISC, despite the following evidence: Mayfield did not have a current passport; he had not been out of the country since completing his military duty as a U.S. Army lieutenant in Germany during the early 1990s; the fingerprint identification had been determined to be ‘negative’ by the SNP; the SNP believed the bombings were conducted by persons from northern Africa; and there was no evidence linking Mayfield with Spain or North Africa. The government nevertheless made the requisite showing to the FISC that Mayfield was an ‘agent of a foreign power.’ That representation, which by law the FISC could not ignore unless clearly erroneous, provided the government with sufficient justification to compel the FISC to authorize covert searches and electronic surveillance in support of a criminal investigation.”
The judge summed up the impact of the law as amended by the Patriot Act. “In place of the Fourth Amendment, the people are expected to defer to the Executive Branch and its representation that it will authorize such surveillance only when appropriate,” she wrote. “The defendant here [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.”48
However, a three-judge appeals panel in the Ninth Circuit vacated Aiken’s decision, ruling that Mayfield had no standing to pursue his claim that his Fourth Amendment rights had been violated, “because his injuries have already been substantially redressed by the settlement agreement.” The judges did not address Mayfield’s central point: the unconstitutionality of the Patriot Act’s amendments to FISA.49
THE INVESTIGATOR’S TOOLBOX
If the means of surveillance exist, an investigator will use them: That is the axiom of the law. Liberty cannot rely on the restraint of individual officials, depend on their discretion, or presume that powers will be exercised judiciously. At the very least, whatever the law allows will be done, and done enthusiastically, as it was in monitoring Jeffrey Battle and the other Portland residents after they tried to join the wrong side in Afghanistan. The case illustrates how usefully the traditional tools of criminal investigation can be enhanced by FISA.
On September 29, 2001, a group of Oregon men, most of them African-American Muslims dressed in robes and turbans, drove to a private gravel pit in Washington State to practice shooting an assortment of shotguns, pistols, and rifles. They were interrupted by a deputy sheriff who had been called by a neighbor after hearing the shots. Despite their appearance, their arsenal, and the nation’s high state of anxiety, the deputy did not detain them or check the legality of the firearms, which included a fully automatic Chinese SKS 7.62 assault rifle, banned by federal law. This was gun country, after all. He merely took their names and told them that because they were on private property, they had to leave.
They did, although Battle, running his mouth later, bragged that “we was gonna pop him” and left him alive only because “the cop was cool … a gun guy.”50
Toward the end of October, several weeks after the American invasion of Afghanistan, the men flew to China, where one of them, Patrice Lumumba Ford, had studied Mandarin for two years in a Johns Hopkins postgraduate program. Intending to cross into Pakistan and then Afghanistan, they made their way to western China’s Xinjiang Uygur area, but with warfare raging on the Afghan side of the border, Chinese patrols and checkpoints had multiplied, and the main highway toward the mountainous frontier had been closed for the coming winter to all but returning Pakistanis.
The “muscular men,” doing chin-ups from a hotel lobby’s rafters and practicing martial arts in the courtyard in Kashgar, seemed like “uninformed goofballs” to an American journalist, Ron Gluckman, who was there reporting a story on Chinese Muslims. They dissembled, he said, giving various versions of their travels. “Ford told me directly that he had never been to China before, then spoke Mandarin on the phone.” They seemed out of their element. “You meet all kinds on the road,” Gluckman observed, “but you sometimes worry about lost souls.” And worry more than suspicion propelled him to notify the American embassy back in Beijing, “not to get them in any trouble, really just for their own good,” to “at least let someone in authority know there was a bunch of guys that might wind up in trouble out there.”51
They hired a driver, but he backed out because of Chinese security on the road. Then they tried a bus, but the driver wouldn’t let them board.52 Retreating to Beijing, they applied at the Pakistani embassy for visas, were turned down, and then split up, two returning to the United States immediately, others traveling to Malaysia, Indonesia, and Bangladesh, apparently searching for a Muslim struggle to support, before going home. One was arrested in Malaysia, and another—a Jordanian, Habis al-Saou
b—managed to get to Pakistan, where he was reportedly killed.
Otherwise, they never reached the battlefield, never fired a shot, and never even made contact with al-Qaeda or the Taliban. Instead, they were caught in the snare of their own delusions.
“I don’t think their purposes were well defined,” said Kristen L. Winemiller, who represented Battle. The victim of a violent home, he had meandered from one faith to another during his twenties, she said, ending as a convert to Islam after seeing the film Malcolm X. Funny, dramatic, with a bent for wild talk, he seemed entirely unsuited for combat. “My client had enlisted in the U.S. Army and washed out because he was not physically fit,” she noted. “He was overweight and not a very good soldier. I can’t imagine the Taliban would have looked at him and said he’d make a good soldier.”
Ford’s mother, Sandra, remembered his saying that “he was going to try to lend assistance to women and children.” Her voice was still laden with sad disbelief. “He didn’t question enough the reasons other people were going, and he didn’t explain enough his reasons for going. I believe he was truly going for humanitarian reasons. He got raised that way. All his siblings have the same sense of charitableness and caring for other people. He’s a cerebral person, a thinking person.”
And a bit too trusting, added his father, Kent, who founded Portland’s Black Panther chapter in 1969 and became a target of surveillance, secret searches, harassment, and arrest during the years of the FBI’s counterintelligence program COINTELPRO. The experiences had taught him lessons that he regretfully neglected to impart to his son. “You shelter your kids, and he was just a baby, and he didn’t know the extent they would go to entrap you,” said Kent. “I wish I had talked to him about this. I never did say much unless he asked. He did not ask very much.” And if the conversations had occurred, would his son have behaved differently? “I don’t know,” Kent answered. “He’s the kind of person where he trusted everybody.” Including an informant, as it turned out.
The Rights of the People Page 26