(Updated) Feds Re-Admit Using PATRIOT Act Against Mayfield
Comes Days After They Made AP Retract Story
Note: This post has been updated. Any and all updates appear at the end of the original post.
Only a handful of days after the Feds made the Associated Press issue a correction to their original report, the Attorney General has announced that the AP had it right the first time.
The statement was notable because the Justice Department has previously denied that the Patriot Act came into play in the Mayfield case.
In fact, Gonzales said so earlier Tuesday at the same hearing. "The Patriot Act was not used in connection with the Brandon Mayfield case," he said in response to a question from Sen. Dianne Feinstein, D-Calif.
Two days before the AP issued their "correction", they had reported that a letter from the U.S. Department of Justice to Mayfield's attorneys had admitted they had used the PATRIOT Act in the case.
In the correction the DOJ somehow got the AP to issue last week, they engaged in a bit of linguistic trickery, asserting that they hadn't used the PATRIOT Act, but provisions of an Intelligence Authorization Act from 1995, which amended the Foreign Intelligence Surveillance Act of 1978.
Problem is, that 1995 act itself was amended by the USA PATRIOT Act of 2001. So while the DOJ's "correction" might technically have been correct, it was correct in the "it depends on what the definition of 'is' is" sense.
Which leads to the obvious question: Just how did the DOJ manage to get the AP to change its tune last week?
For some likely relevant context, see the update to this earlier item. That update gives a glimpse at some tensions between the FBI and/or DOJ and the local office of the Associated Press. As a result of certain fear-mongering tactics on the part of Robert Jordan, head of the FBI here in Oregon, the AP apparently decided to stop listening to him.
So as near as we can tell, the DOJ seems to have just been jerking the local AP office around in an attempt to prevent any confirmation of bad press on the PATRIOT Act.
Is it any wonder that some of us here in Portland are skeptical that talking to the Feds on these issues is ever a conversation between or amongst mutually-respecting partners?
Update
See the latest AP article on all of this, which includes some bits about the premise that the DOJ has been trying to avoid bad PR for the PATRIOT Act.
April 05, 2005 at 11:30 PM
The Mayfield case is the ball and chain around the Patriot Act's neck, and the DOJ knows it. Mayfield's attorney will argue that what the DOJ did, violated the fourth amendment in the US Constitution. Becuase the DOJ finally admitted today that they did use the Patriot Act, one can only conclude that if Mayfield's fourth amendment rights were violated that the Patriot Act IS unconstitutional and therefore should be repealed. This is why the DOJ is trying to yank the AP's chain.
April 06, 2005 at 08:24 AM
(learning how to write "sneak & peek" as opposed to "sneak & peak", wish me luck)
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AP local people are great, but I have to give credit to the Oregonian today - it is not clear what and how much Gonzales is admitting.
Apparently he said that 218 of Patriot Act was used "in some sense". 218 changes "the purpose" to "a significant purpose" when deciding whether FISA provisions can be used in any given investigation. It reads:
Sections 104(a)(7)(B) and section 303(a)(7)(B) (50 U.S.C. 1804(a)(7)(B) and 1823(a)(7)(B)) of the Foreign Intelligence Surveillance Act of 1978 are each amended by striking `the purpose' and inserting `a significant purpose'.
What this does is relaxes the requirement that it has to be a spy or international terrorism investigation before they can apply this harshly draconian law to you (its intent is to neutralize not prosecute). Irrelevant for Mayfield imho, because they had enough goods on him (in their fraudulent ways) to go to FISA judge and request a sneak & peek search warrant. Which they did. It was "the purpose" not " a significant purpose". Gonzales is extremely technical here to his credit.
He also claimed something relating to electronic searches, likely Sec 220 which gave any court in the land the right to issue warrants for electronic evidence. (translation they want to be able to shop for judges nationwide). Again I don't see much significance in Mayfield case.
All this is extremely technical, there are provisions in the Patriot Act that were never applied to Mayfield but need to be changed and changed soon (see SAFE Act co-sponsored by R. Wyden currently in Senate). Let's hope Earl will find some time to vote on it this time.
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On a pessimistic note. Look, local feds (Jordan, Immergut) badly needed another major success story, Mayfield was a suspicious character, former DoD intelligence officer that went bad (in their book), converted to Islam, married Egyptian and started to quote too much from the Bill of Rights. That was plenty suspicious in their minds. Enough to want to bag him, and bag him they did once they could hang that fingerprint on him. Laws will always be elastic enough for feds to do what they think needs doing. Oversight is what we badly need here. My suggestions for the City Hall negotiators follow.
April 06, 2005 at 11:32 AM
The current JTTF debate focuses on granting mayor top level security clearance so he can properly supervise his own JTTF personnel. This is far from satisfactory, regardless of mayor's security clearance FBI will be not required to tell him anything. Real oversight will be severely compromised.
There is a much better solution as originally suggested by Potter himself and that is to give mayor a seat on the board that supervises Portland JTTF. Presence of an elected official (with proper security clearance) would go a long way toward ensuring that the activities of the local JTTF are consistent with Oregon statues.
Jordan (FBI) appears violently opposed to this idea, claiming that such boards are open only to law-enforcement personnel, not civilians. That is true but only in totalitarian or semi-totalitarian or militarized societies, in democratic countries the opposite is true, the presence of civilians (elected officials) on such boards is essential. The stakes are too high for the citizenry. So let's stay on JTTF but only if they grant mayor (or his police commissioner) a seat on its supervisory board.
April 06, 2005 at 11:35 AM
Jordan (FBI) appears violently opposed to this idea, claiming that such boards are open only to law-enforcement personnel, not civilians.
Which is the same thing the FBI originally said about security clearances. But then they came around to the idea that since the Mayor was also the police commissioner, they could let the Mayor (Katz at the time) apply for clearance.