March 29, 2005
Feds Admit Using 'Sneak And Peek' Against Innocent Portland Man
May Be The First Admission Of Use Of Provision
At some point this evening, while we were taking a breather, a major story broke via an Associated Press story posted to the KGW website. The U.S. Department of Justice has admitted for the first time that it used the "sneak and peek" provisions of the USA PATRIOT Act against local attorney Brandon Mayfield.
The letter provides new details about the investigation against Mayfield, stating that agents seized three hard drives, 10 DNA samples preserved on cotton swabs and took 335 digital photographs of personal effects in his home.
He was also the target of "other physical searches," the letter states, without elaboration.
The unexpected admission came in response to a letter Mayfield's attorneys had filed as part of his lawsuit "contending his rights were violated by his arrest and by the investigation against him". Last year, the FBI combined mishandled fingerprint evidence with scare tactics about Islam to jail Mayfield for two weeks under the false suspicion that he was connected to the Madrid train bombings.
(See these local search results for our other coverage of the Brandon Mayfield incident.)
After his ordeal, Mayfield repeatedly insisted that his home showed signs of having been infiltrated under the PATRIOT Act's so-called "sneak and peek" provisions, under which law enforcement may conduct searches and seizures without ever notifying the subject, as is normally the case with traditional search warrants.
According to a former Justice Department official quoted by the AP, this may be the first time the government has admitted to using the "sneak and peek" provisions.
Timing is everything. While we will make no argument here that this revelation has any direct connection to the question of oversight and the JTTF to be taken up tomorrow evening by City Council, it does have bearing the larger issues involved.
What we have before us now is a confirmed case of law enforcement using broad and nearly-unaccountable police powers, granted on the basis of incorrect evidence and bias against Muslims, to secretly break into the home of an innocent man, seize his property, sample DNA, and who knows what else.
We know that at least one of our readers will say that this makes him feel safe.
Us?
It just makes us ill.
Comments (11)
eric on 29 Mar 2005
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The One True b!X on 29 Mar 2005
This is not a bulletin board. This is not a place for free text ads for unrelated material. Please do not dilute discussions of the topic at hand with posts that are nothing but self-promotion of material on other topics.
Sid on 29 Mar 2005
I just posted the same story. When I heard about it, it didn't surprise me. Remember when Mayfield was released he said he was certain that the FBI had been going into his home while he was away. He said that there are two locks on his door and no one in his family ever used the deadbolt. They came home one day and the deadbolt was locked.
Another time they vacuumed the carpet so it looked just perfect before they left. When they got home there were foot prints all over the carpet.
The whole thing is just creepy. 335 digital photos of his place were taken?! I just can't get over this whole thing.
Jordan on 29 Mar 2005
Don't forget, whether or not he knew aobut the search, the FBI still had to go to a judge to get a search warrant and present evidence, and he was cleared from the searches. It's not all doom and gloom.
trever on 29 Mar 2005
This is probably why the FBI has such a low recruiting percentage here in the Northwest. They seem totally incompetent and often make illegal and unethical decisions.
The One True b!X on 29 Mar 2005
Don't forget, whether or not he knew aobut the search, the FBI still had to go to a judge to get a search warrant and present evidence, and he was cleared from the searches.
First, the affadavit used by the FBI (if you'll actually read the links I provided above) was almost entirely based upon the fact that Mayfield was a Muslim. It was an unwarranted warrant, and the affadavit was just a pretext used to try to bolster the fingerprint.
Second, and this is important: He was not cleared from the searches, he was cleared because the Spanish authorities were relentless in getting the FBI to understand that they had the wrong man, and the FBI finally admitted it was wrong, so a judge freed him.
Get that: The searches did not clear him, the FBI admitting it screwed up on the fingerprint cleared him.
Understand what happened here: An innocent man, based on an FBI screw up and a biased affadavit that was nothing but window dressing, had his home infiltrated secretly by Federal authorities.
What, precisely, is not doom and gloom about that?
wg on 30 Mar 2005
And this is almost a year after the case against Mayfield was formally closed.
It is safe to assume there must be a large number of "sneak and peek" cases out there, whose targets were and will never be notified by the FBI. The "Patriot" Act talks about delayed notification where "delayed" is never defined. Could be practically never if they want to keep it secret.
They admitted it only when Mayfield requested the information and because of the pending court case. Wyden proposed some time ago changing this aspect of the Act immediately (demanding defined notification period). Obviously to no avail. Sadly it looks like most of the "Patriot Act" will survive when it comes up for renewal later this year. And that's imho another reason why passing this nominal local correction (JTTF) is so important. There is very little or next to nothing in terms of meaningful supervision when it come to feds.
Maru on 30 Mar 2005
Just wanted to say you are now my 'official local hero'. I have been reading you for months and found your site a great morning catch up to the latest events, but with your dogged following of this story, I have to give it to you. You Win!!
If other states haven't thought of protecting their citizens this way then shame on them, *GET WITH IT*
Seriously, the argument you have taken here of structural insurability owed to us by our government in the form of inherent checks and balances guaranteed to us as US citizens is at the heart of where the national argument needs to go.
If Portland be the first, so be it.
History is riddled with examples of fear overidding good judgement, let us at the very least cause a 'moment of pause' in the rush to make vulnerable every good citizen of this country.
The article you linked here is such a case.
Where is the line between protection and paranoia?
That line is suppose to be structural and automatic, built into the system like an auditor or accountant. A no fault, no blame level of accountability that at the moment does not exist according to the laws of Oregon State.
Does not exist for the nation.
Oregon has already chosen to stand apart by going farther then most states to guarantee our personal liberties. Lets own that reputation, it isn't a weakness it is our strength.
Three cheers to those who are opening the argument that blind trust of federal agencies and long lines at airports aren't the BEST solutions to our long term safety.
Someone has to pull the brake.
We took a wrong track about three miles back.
Keep up the work b!x
Hat's off
Maru
The One True b!X on 30 Mar 2005
It is safe to assume there must be a large number of "sneak and peek" cases out there, whose targets were and will never be notified by the FBI.
Which is exactly why the provision is so disturbing. If the FBI had never actually held Mayfield at all, thereby causing the chain of event which led to the controversy, the FBI never would have been forced to admit it used "sneak and peek".
That in and of itself almost definitely means that there are innocent Americans out there who haven't been held or charged, but who nonetheless had their privacy violated entirely in secret by Federal authorities.
wg on 30 Mar 2005
... doom and gloom about that?
The Mayfield case was and remains deeply troubling. Feds can get anybody these days - their lab people will lie when needed, prosecutors will eagerly prosecute and there will be no shortage of judges willing to assist the government in its war on terror. Independent experts will confirm whatever evidence the FBI decides to use in courts. The guy was done for good, there was no realistic recourse left to him domestically.
Sadly, there is no guarantee Mayfield will not happen again. "Sorry" doesn't solve anything. Nothing has changed post Mayfield fundamentally or otherwise. All ingredients for future abuse/mistakes are still in place. There are no effective checks and balances, they continue to operate in full secrecy with much expanded post 9/11 powers. Keep in mind there will be no Spanish or other foreign involvement in future cases.
It is crucial that Portland does everything possible to ensure its own contribution to the war on terror remains fully above the board. The Oregonian opposition to JTTF resolution is hard to understand, the only argument they offered so far is that somehow giving US mayors full access to FBI secrets, dirty or not, is bad for us. That is not true, having top clearance doesn't mean FBI has to tell them anything, it means they won't be able to use "Sorry Mayor, we would love to tell you everything we do in your neck of woods, good or bad, but this takes top clearance, you know". They will be able to continue to keep everything secret. Plus having access to FBI secrets, especially dirty ones would go a long way to ensure preservation of civil rights of citizenry imho. So the Oregonian's stand remains puzzling.
Sid on 30 Mar 2005
Pre-Patriot Act, the FBI would not have been able to receive a "sneak and peek" search warrant based on the evidence given to the judge. The fingerprints that were presented were latent, which would have been considered unacceptable. From what I've heard there were six other latent prints that were closer matches than Mayfield's, but the FBI got stuck on Mayfield for some reason.
The system is now guilty until proven innocent, which is unconstitutional.