May 25, 2004
(Updated) False Evidence Plus The Smearing Of Islam
The FBI's Equation In The Brandon Mayfield Case
Note: This post has been updated. Any and all updates appear at the end of the original post.
According to another Associated Press article, the wrongfully-detained Brandon Mayfield is moving to respond to his ordeal on at least two fronts:
One line of inquiry explores how the FBI erroneously linked Mayfield's fingerprint to the bombings, the other why government officials leaked information about Mayfield's arrest to the media.
His attorneys say they want a thorough airing of the FBI's internal forensic work and behind-the-scenes maneuvering to get the story out in the national press.
They also want an answer to whether their client's Muslim beliefs biased FBI investigators.
While it might be difficult to ascertain whether Mayfield's beliefs biased FBI investigators, it seems rather apparent from their affadavit (pdf) that they were trying very deliberately to create the specter of a Muslim boogeyman to frighten the court into granting their request to detain Mayfield.
Apparently, it was not enough for the Department of Justice to rely on what eventually turned out to be entirely false fingerprint evidence. No, they had to present other "evidence" against Mayfield -- nearly all of which revolved around his Islamic beliefs.
After relating the bogus fingerprint evidence, the affadavit reports that Mayfield represented one Jeffrey Leon Battle in a 2002 child custody case. Battle, readers will recall, was one of the infamous Portland 6/Portland 7 -- a point the affadvit goes to great lengths to remind the court in drawn-out and vivid detail. Of course, none of Battle's involvement in that terrorism case has anything to do with Brandon Mayfield.
As one of Mayfield's attorneys has pointed out, it's a fairly dangerous thing to argue that a lawyer should be suspected because he represented a client who went on to be convicted of a crime. Our entire legal system is based upon the idea that everyone has the right to zealous representation. And in this particular case, Mayfield wasn't even representing battle in a criminal proceeding, let alone one involving terrorism. This item in the affadavit is all about saying to the court: Mayfield once represented a man who later turned out to be an Islamic terrorist, therefore Mayfield must be a suspicious character.
Next, the affadavit makes much ado over a telephone call made by Mayfield's wife. It seems that she spoke with the director of the U.S. offices of an Islamic non-governmental organization. The affadavit insists on mentioning that some offices of that NGO have been declared terrorist organizations by the United States government. Problem is (and the affadavit does decided to mention this, almost in passing), none of the U.S. offices of this NGO have been so designated.
This particular piece of "evidence" eventually led to the Associated Press incorrectly reporting that the entire NGO had been designated a terrorist organization -- a misrepresentation which likely now resides in the minds of various readers of their original report.
But since none of the U.S. offices of this NGO have been designated terrorist organizations, the affadavit has to find some other way to smear its operations -- and by extension, through his wife's telephone call, Brandon Mayfield. So it goes on to explain that this NGO was involved in a prison ministry which distributed "thousands of 'Noble Qur'ans' throughout United States prisons."
It seems that these books included an appendix entitled, "The Call to Jihad in the Qur'an" (do a Google search for this and variants of it, and you'll find what likely are copies of this appendix). Now, whatever one's perspective or interpretation of that appendix, the implication of this part of the affadavit is clear. It is saying to the court: Mayfield's wife once called the director of an Islamic non-governmental organization which has been giving Qur'ans to prisoners, therefore Mayfield must be a suspicious character.
Next up? The fact that Mayfield advertised his law practice in a so-called "Muslim yellow page directory." It seems that the individual behind this directory once has business dealings with a man once connected to Osama bin Laden. So the message the affadavit seeks to deliver to the court here is clear: Mayfield advertised his business in a directory whose owner once did business with another man who at one point was connected to American's most-wanted enemy, therefore Mayfield must be a suspicious character.
Worse yet, the affadavit follows this with a single sentence explaining that Mayfield had been spotted by surveillance agents visiting the Bilal Mosque in Beaverton. A single declaratory sentence. Implication being: Mayfield went to a mosque, therefore Mayfield must be a suspicious character.
While it's understandble that Mayfield and his attorneys seek to discover whether or not an anti-Muslim bias impacted the FBI's investigation, we're not sure that's provable.
What is blatantly obvious, however, is that once the FBI had in hand their precious fingerprint evidence (which, just in case someone's forgotten, turned out to be completely wrong), they carefully constructed an affadavit which was almost entirely about Mayfield's life as a Muslim.
In the Associated Press piece with which we opened, Chris Schatz, one of Mayfield's attorneys says: "Worse would be if the whole process had been tainted by the FBI saying 'Ah ha, this guy who is number four or five on the list is a Muslim.'"
That may very well be true. But certainly true -- to our mind, at any rate, after having read through the affadavit -- is that the FBI turned to the District Court and said: "See all these Islamic things this Muslim guy is doing? See all these bad things other Muslims have done?" Wink, wink. Nudge, nudge. Say no more.
Update
Amongst the perfectly charming revelations in the Oregonian articles on the fingerprint error and the secret court proceedings is that during the FBI's first trip to Spain to confer with authorities there, they neglected entirely to avail themselves of the obvious opportunity to examine the actual original fingerprint evidence.
Then there's the editorial in which the paper actually gets something right: "When the government is wielding this kind of power, getting one out of two right is not good enough."
Comments (24)
alan on 26 May 2004
I hope he and his family win a huge settlement, while making this a very public case. This is what a Bush America is.
pdxkona on 26 May 2004
Yeah, I feel bad for them- they've just gone through an ordeal, and I can't imagine them wanting to be in the public eye any longer. But I virtually plead with with in my head to, somehow find the strength, and step up to SUE the FBI and Ashcroft's Patriot Act LOUDLY. We need them to be practically screaming injustice; this country needs them.
brett on 26 May 2004
Oh, come on. What you just wrote about is substantial evidence of connections between Mayfield and people with terrorist connections. Are you saying the FBI should ignore that? Put yourself in their shoes: they had evidence that Mayfield's fingerprints were on evidence from Madrid (yes, it LATER turned out to be wrong, but at the time, they had no reason to think that), and they had evidence that Mayfield was connected to radical Islam - LOTS of it. Now that they know the fingerprint evidence was incorrect, they released him and apologized. What the hell more do you want out of the FBI? Do you not want them trying to make connections between supporters of radical Islam? Do you want them ignoring evidence of potential terrorists in this country? If they had made these kinds of connections in the summer of 2001, they might have prevented 9/11. The system worked EXACTLY like it is supposed to. Now, if Mayfield thinks he's been mistreated, let him sue. Of course it's unfortunate that he was arrested on bad fingerprint evidence - but when the FBI has both physical and circumstantial evidence of someone who is a potential terrorist, I WANT them to take action. And so should you.
Pete on 26 May 2004
Watching Mr. Mayfield on the news describing the evidence of "sneak and peaks" I said to myself, "that's what every Muslim in America faces and fears now."
When will they come for the atheists?
brett on 26 May 2004
They will come for any specific atheist (including this one) when they find that atheist's fingerprints on terrorism evidence and when they know of that atheist's connections to people affiliated with terrorists. How is that any different than what happened here?
Noah Brimhall on 26 May 2004
brett said, "they had evidence that Mayfield was connected to radical Islam - LOTS of it".
I call bullshit. They had evidence that someone he did buisness with, once dealt with someone who might have met or been involved with Osama Bin Laden. That is 3 degrees of seperation (Mayfield > Yellow Pages Guy > Middle Man Guy > Osama). Just a quick glance at my friendster account shows that I have only 2 1st degree friends, 51 2nd degree friends, and 900 3rd degree friends. Am I to be held responsible for what those 900 people are involved in? God, I hope not, becuase I don't know them. For all I know one of them could be the next Timothy McVeigh or Terry Nichols.
Now that is just connections from my patheticly small number of friendster contacts. Imagine every business contact I have made int he last 6 years. Then go 3 degrees out from that. I imagine it could be a few hundred thousand contacts.
Aaron V. on 26 May 2004
The FBI put two and two together and got 22, brett.
The fingerprint evidence was processed sloppily by the FBI - Spanish law enforcement not only called into question Mayfield's ties to the bag of detonators, they actually found a match.
All those instances you seem to cite are coincidences which only prove that Mayfield was active in the Muslim community, NOT that he was involved in any way, shape, or form with terrorist activity.
The FBI did many "sneak-and-peek" searches of the Mayfields' home, which are permissible under the "Patriot" Act. Now that an innocent has been damaged by having his home invaded under this law, we can see the sections allowing the secret warrantless searches purged from the books, and hopefully, its architects (Viet Dinh and John Yoo) will be disgraced and even disbarred.
brett on 26 May 2004
1. He represented a known terrorist. By itself, that's nothing (speaking as a lawyer), but it counts.
2. His wife had contact with a known terrorist organization. Distinctions between the foreign offices and US offices are meaningless - it's the same organization. This organization distributed literature calling for holy war against infidels. Including us.
3. He had contact with someone with known terrorist connections, Mr. Yellow Pages.
4. He attended a mosque with known terrorists.
Guess what? If the above was all they had, nothing would have happened. But then they had hard, physical evidence that connected him to Madrid. I would be outraged if they did NOT pick him up based on the above evidence.
You want to have your cake and eat it too: you want the FBI to do nothing until they have a smoking gun, yet you want the FBI to prevent terrorist attacks before they happen. Make a choice.
And Aaron, get your facts right. Section 213 does not allow for secret, warrantless searches. It codifies what has been a longstanding practice of police everywhere: delaying notification of the execution of warrants. Every single action taken against Mayfield was pursuant to a warrant issued by the US District Court in Portland.
Pliny on 26 May 2004
I don't want to start a "let's all stomp on Brett" thread, but I think the view he's expressing calls for a response.
Our legal system is predicated on the idea that it is better for the occasional guilty person to go free, than to imprison one innocent person.
Defending our homes from terrorism is important. The problem is with how we've been doing it so far. "Sneak and Peek" searches? Guilt by association?
It's important to remeber why Al Qaeda attacks us. Bin Laden's dream isn't to kill us all, it's to make us do what we're doing right now. Every man we label a "radical" Muslim, every Iraqi tortured for information, every day our excuse for a President doesn't repudate this failed neoconservative agenda, Al Qaeda wins hearts and minds.
Bin Laden's vision was of a Middle East untouched and unsullied by the west. No US involvement. Every Israeli gone or dead. To do that, he needs a bogeyman big enough to unite both Shia and Sunni.
It's up to people like you to decide if he gets it.
The One True b!X on 26 May 2004
and they had evidence that Mayfield was connected to radical Islam - LOTS of it.
Um, no they didn't.
The One True b!X on 26 May 2004
Just a quick glance at my friendster account shows that I have only 2 1st degree friends, 51 2nd degree friends, and 900 3rd degree friends. Am I to be held responsible for what those 900 people are involved in?
This is sweet.
The One True b!X on 26 May 2004
1. He represented a known terrorist. By itself, that's nothing (speaking as a lawyer), but it counts.
Excuse me, but in 2002 when Mayfield represented Battle in a civil child custody case, Battle was not a known terrorist.
2. His wife had contact with a known terrorist organization. Distinctions between the foreign offices and US offices are meaningless - it's the same organization. This organization distributed literature calling for holy war against infidels. Including us.
That's one interpretation of the "call for Jihad" appendix, but it isn't the only one. And I'm sure there's plenty of other literature out there being distributed to prisoners which might be as controversial. And even if we take the negative interpretation as a given, I see no evidence in the affadavit that Mayfield even knew about the appendix, let alone subscribed to your interpretation of it.
3. He had contact with someone with known terrorist connections, Mr. Yellow Pages.
He advertised in a directory. That's the only link. Do you do a criminal or terrorist background check with every company with which you do business? Better start, or one of them might be deemed a link between you and criminal activity by the Department of Justice.
4. He attended a mosque with known terrorists.
So do any number of other Muslims. That makes them suspects? Many people attend church with radical Christians who have tried to kill abortion doctors. Does that make them suspects?
Guess what? If the above was all they had, nothing would have happened. But then they had hard, physical evidence that connected him to Madrid. I would be outraged if they did NOT pick him up based on the above evidence.
And this, in fact, was the point I was trying to address. If they had him on the fingerprints, that's all they needed. The rest was prejudice dressed up as "evidence" in an attempt to sway the court through fear.
marcello on 26 May 2004
Being muslim seems to be the "driving while black" of the new century.
brett on 26 May 2004
b!x, I agree with each of your points above. It's easy to criticize each of them as insufficent standing alone. But they weren't standing alone. Each of those items, even if innocent in and of itself, would have lent credence to their theory that Mayfield was involved in terrorist activity. If you have someone whose fingerprints are on terrorism evidence, each additional piece of evidence linking him to radical Islam strengthens your theory. And, no matter how tenuous, each of those items is a link. The fingerprints were the linchpin that tied everything together; that should be obvious from his release and from the FBI's apology. Without the fingerprints, of course it doesn't make sense.
My point is that this is all in hindsight - in the heat of the moment, knowing what they thought they knew about Mayfield, the FBI was not only justified, but obligated to lock Mayfield up. Just as they were obligated to release him and apologize when the crucial evidence turned out to be wrong. The system worked.
> The rest was prejudice dressed up as "evidence" in an attempt to sway the court through fear.
I don't buy this at all. It wasn't simply that he was Muslim - it's that he had connections to radical Muslims. It was his associations that the FBI and Judge Jones found important, not his religion.
> Bin Laden's vision was of a Middle East untouched and unsullied by the west.
No, actually his vision is that there *is* no west. His vision is a worldwide Caliphate incorporating all the features of life in the 12th century. No room for democracy, liberal values, or multiculturalism there.
The One True b!X on 26 May 2004
The system worked EXACTLY like it is supposed to.
Ok, actually, no it did not. The only reason Mayfield was exonerated was because there was an independent third party which acted as a check against the FBI -- the Spanish authorities. If this had been an investigation performed entirely with U.S. law enforcement, we may very well have never known that Mayfield was unconnected to the fingerprint.
So, no. The system did not work, because it contined no checks on FBI behavior and analysis.
Simply out: We -- and Mayfield -- got lucky. Period.
Now, if Mayfield thinks he's been mistreated, let him sue. Of course it's unfortunate that he was arrested on bad fingerprint evidence - but when the FBI has both physical and circumstantial evidence of someone who is a potential terrorist, I WANT them to take action. And so should you.
What want is for them to not be in a position where over-zealousness and blindness obscures proper procedure and then combines with their broad police powers. And so should you.
wg on 26 May 2004
two observations ...
Point 19 of the official FBI affidavit reads:
19. Since March 21, 2004, surveillance agents observed MAYFIELD drive to the Bilal Mosque located at 4155 SW 160th Avenue, Beaverton, Oregon on several different occasions.
It is interesting that the FBI (agent Werder) considers trips to a house of worship relevant to deciding whether one should be arrested or not. Interesting and rather troubling frame of mind.
---
Significantly more disturbing is the prosecutorial and judicial abuse in this case. Judicial because the material witness statute (actually one lousy three sentences long paragraph states:
No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice.
Mayfield never declined to talk to Werder nor did he refuse to be deposed or to testify. The judge ordering his detention was thus wrong (imo) and I don't know whether you call it erring or abuse.
It appears to be a case of prosecutorial abuse in the sense of point 9 and (possibly) 14 in this old cataloque . It's highly unlikely DoJ will intervene here. However 28 USC ยง503B makes all US attorneys subject to State laws and rules, so Oregon Bar Association has full disciplinary powers over OBS#96314 and her colleagues.
myrln on 26 May 2004
The fingerprint "match" claims were/are bullshit plain and simple. Immediately after FBI said it had a match, the Spanish pointed out the FBI had only 7 points of match (which FBI acknowledged) which isn't sufficient to detain a wild dog much less Mr. Mayfield. At least 12 points are required for good possibility. So stuff the fingerprint crap and everything else is pure stalking harrassment.
myrln on 26 May 2004
In a perhaps thematically loosely-related item: in the upstate capital of New York, a new program has been initiated. State and local police in NY and Vermont will be able to go an upstate regional intelligence center to check info about suspects "they pull over on traffic violations or otherwise encounter during patrols. The center can check names,plates and other info against federal data bases and watch lists." In other words, now your local Barney Fyfe can make the same screwups as the FBI since that's where he'll be getting his info. Your Patriot Act in action?????
William on 27 May 2004
Brett; In reading the back-and-forth between you and other readers, there's one thing not being discussed that I'd like to expand on. You seem to think that locking up Mayfield was some sort of imperative. But even if I agreed with you that the FBI had sufficient cause, I would still disagree with your apparent support for locking him up when they did.
"...when the FBI has both physical and circumstantial evidence of someone who is a potential terrorist, I WANT them to take action."
What should that action be? In the pre-Ashcroft days, convetional FBI wisdom held that a suspect shouldn't be locked up ASAP. Rather, that suspect should be used to gather more information and round up cohorts. 9/11 doesn't change the soundness of that philosophy, and that philosophy clearly wasn't followed with Mayfield.
I'd be interested in hearing your thoughts on this article. Would you have followed a different and probably more appropriate course of action had you been in charge of the Mayfield case? It's not as though the FBI had any inkling of fear, whether or not Mayfield helped out in Madrid, that he'd be able to strike again now that the FBI was watching him closely.
myrln on 27 May 2004
I'd like to correct an earlier posted comment I made. The FBI had eight points of similarity in the print...out of the standard fifteen generally accepted as a match. Compared to my mistaken 7 of 12, if you do the math, you know the corrected figures give the FBI an even worse percentage.
William on 27 May 2004
Didn't the FBI claim they had 15, and Spain claim it could only find 7 or 8 when they looked at Mayfield's fingerprint? 12 is accepted as admissible in some legal systems and my recollection is that Scotland and several others demands 16.
myrln on 28 May 2004
Once again I must apologize for misplacing the figures. Exactly right, it was the FBI who claimed the larger number. Bear with me, my brain is frying??
Michael the Archangel on 30 May 2004
You folks drive me nuts!
You know, if the FBI (and whatever other law enforcement agency) had gathered some evidence that "seemed" damning, but didn't act on it; and he had been a terrorist and something big had happened - then law enforcement is the bad guy. In this case, they got some information, it seemed damning, they acted on it, it was incorrect information - so they are the bad guys.
You all want it both ways. You want to be protected (we all do), but you want law enforcement to do it without any mistakes. Sorry, I'd rather they errored on the side of a mistake than not. In the case of the mistake that happened to Mr. Mayfield, he was inconvenienced. Had the mistake gone the other way, how many lives might have ended?
Anyone remember Mr. Hawash? Or have you conveniently forgotten him?
The system has it's flaws, we all do. You complain that it's targeting Muslims, well duh - if it were Christians out to harm us all I would hope that it would be targeting Christians.
The One True b!X on 30 May 2004
You all want it both ways. You want to be protected (we all do), but you want law enforcement to do it without any mistakes.
No one here said anything about not making mistakes. But this was an avoidable mistake, not an inevitable one. What I want to know is, if Ashcroft flies to Oregon to take the limelight and the credit for their success in the Portland 6/7 case, why isn't he also taking the limelight of having to apologize for his Justice Department?
In the case of the mistake that happened to Mr. Mayfield, he was inconvenienced.
Oh, yes, okay. Inconviences. Put into jail with actual criminals, his reputation ruined, his belief system smeared. All just a little inconvenient.