are notorious for their liberal rulings and anti-government bias. We speak from experience in making that statement, having attempted in years past, usually fruitlessly, to meet their wildly erratic standards for probable cause even for investigations of terrorism or what are termed “terroristic threats” in many jurisdictions. Courts similar in ideology to the one that refused to protect the Pledge of Allegiance’s “one nation under God” wording routinely bend over backward to protect criminal and terrorism suspects from the dreaded Patriot Act. Federal law enforcement agencies in California, Oregon, and Washington find it increasingly difficult to find U.S. Attorneys willing to prosecute their cases regardless of the available evidence because the district judges are loathe to issuing search or arrest warrants, regardless of the severity of the crime or a suspect’s likelihood to flee once he has discovered he is under surveillance or his home or vehicle have been searched.The political bias of the west’s federal district courts have made them overtly hostile to virtually all provisions of the Patriot Act, and cases brought before them that were investigated under expanded law enforcement authority provided by the Patriot Act are viewed by these judges as golden opportunities to strike at the hated act and more importantly, the president responsible for it, whom they almost unanimously despise.
It was with that underlying opportunistic mentality that U.S. District Judge Ann Aiken heard Brandon Mayfield’s lawsuit against the U.S. Government for violating Mayfield’s constitutional
guarantees against unreasonable searches and seizures. Mayfield was the Oregon lawyer and converted Muslim whom the FBI mistakenly identified as one of the terrorists responsible for the Madrid rail bombing in 2004. That terrorist attack killed nearly two hundred and was the highest priority investigation for international law enforcement, including the FBI, which was tasked with running latent fingerprints found on a detonator at the scene of the bombing through its print matching database known as AFIS. The AFIS system is not exclusive to the FBI, as most federal agencies now use electronic fingerprint scanners when processing suspects, and all prints are transmitted to the central AFIS database.Unfortunately for all parties involved in the Madrid investigation, AFIS identified a number of
possible matches to the fingerprint found on the detonator. Through human error by FBI forensic specialists Mayfield’s prints, which were in the system due to his prior U.S. military service, were identified as a positive match. Nineteen days elapsed between Mayfield’s identification as a suspect in the bombing and the FBI’s discovery and announcement of its fingerprint error. Mayfield was the top media story after his arrest and according to his lawsuit his reputation and legal practice suffered irreparable damage due to the government’s mistake. The government settled a portion of the lawsuit and apologized to Mayfield.Not satisfied with the punitive damages paid by the government in its settlement, Mayfield demanded as part of the settlement to retain the right to challenge provisions of the Patriot Act that he felt had been abused during the FBI’s investigation that mistakenly implicated him. Judge Ann Aiken clearly relished this opportunity to rule in favor of this sympathetic figure and wrote a scathing chastisement of President Bush (referred to as the anonymous Executive Branch) and the reviled Patriot Act and the equally despised Foreign Intelligence Surveillance Act (FISA), which allows for warrantless wiretaps in terrorism investigations under certain circumstances but was not a creation of the Bush administration. FISA has been with us since the 1970s and was legislatively approved by a Democrat controlled Congress at the time. Despite this clear distinction, Aiken ruled that two provisions of the Patriot Act violated constitutional protections against unreasonable searches and seizures.
There is no question that the FBI made a mistake in its matching of Mayfield’s fingerprint with those found in Madrid. Yet, according to the National Association of Criminal Defense Lawyers (NACDL), a decidedly liberal organization, if the FBI used warrantless wiretapping, electronic surveillance, or searches during its investigation of Mayfield, it did so under the authority of FISA, not the Patriot Act. Judge Aiken took it upon herself to strike at the Patriot Act in a case where the powers granted by the Patriot Act do not appear to have been abused. The NACDL reported:
All of the trains involved in the March 11 bombings left from or had traveled through the Acala de Henares train station, in Madrid. Shortly after the bombings, in a van parked in the vicinity of the station, Spanish National Police discovered a blue plastic bag containing detonation materials similar to the devices used in the bombings. On this bag, a number of latent fingerprints were observed.
On March 17, the digital image of at least one of these latent fingerprints, Latent Fingerprint No. 17, was electronically transmitted to the FBI crime lab in Quantico, Virginia. After receiving the digital image of Latent Fingerprint No. 17, the FBI’s Latent Print Unit conducted an examination of the latent print by running it through its AFIS database. The AFIS database search produced 20 possible matches. FBI Senior Fingerprint Examiner Terry Green manually compared the potential matches with the digital image of Latent Fingerprint No. 17 and found a “100 percent” match with the fourth ranked print on the list. The source of the matching print was identified as being an American citizen and former Army lieutenant, Brandon Mayfield. Green’s match was purportedly confirmed by two other FBI fingerprint examiners.
It is not presently known how many of the twenty potential AFIS candidates were examined and whether there were any dissenters within the FBI’s Latent Print Unit. Nor is it known whether the identification process was influenced by information pertaining to Mayfield’s religious adherence to Islam or activities as a lawyer prior to the match being officially declared.
On or about March 20, the FBI reported its findings to the United States Attorney’s Office in Portland, which then commenced an investigation. On April 2, the FBI sent a letter to the Spanish authorities informing them of the identification of Mayfield. However, in a memo dated April 13, the Forensic Science Division of the Spanish National Police responded to the FBI that the purported match was “conclusively negative.”
On April 14, “rumors that Spanish authorities were questioning whether the print matched Mayfield” became known to the prosecutors in Portland. On April 16, the prosecutors became aware that the Spanish authorities “couldn’t confirm the FBI’s match.” On April 21, a representative from the FBI Latent Print Unit flew to Madrid and met with ten members of the Forensic Science Division of the Spanish National Police (SNP). At this meeting, the FBI representative presented the Spanish police officials “with a three-page document detailing their position that the prints from the bag belonged to Mr. Mayfield....”
...At some point in March or April, the FBI began surveillance of Mayfield. Based on a number of extraordinary events at his home and certain redactions in the district court search warrant affidavits, it strongly appears that he was subjected to “sneak and peek” and electronic surveillance under the Foreign Intelligence Surveillance Act (FISA). The government has declined to confirm or deny the use of FISA warrantless surveillance procedures.
In its submissions to the district court, on May 6, in addition to a material witness arrest warrant, the government sought issuance of broadly drafted search warrants for Mayfield’s law office, home, and personal vehicles.... Relying principally on the FBI’s identification of the digital image of Latent Fingerprint No. 17 as being Mayfield’s fingerprint, United States District Judge Robert E. Jones issued the requested material witness arrest warrant and search warrants.
The NACDL recognized that although the government refused to acknowledge the use/non-use of FISA authority in this case, it also obtained traditional search warrants from District Court Judge Jones, who clearly determined that based on the fingerprint match the FBI had probable cause to believe Mayfield had handled the Madrid detonator and thus searches of his home, vehicles, and law practice were reasonable.
Judge Aiken, however, chose to ignore these facts and relied on emotional anti-Patriot Act fervor so abundant in her district. According to the AP story:
U.S. District Judge Ann Aiken ruled that the Foreign Intelligence Surveillance Act, as amended by the Patriot Act, "now permits the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment."
…Mayfield claimed that secret searches of his house and office under the Foreign Intelligence Surveillance Act violated the Fourth Amendment's guarantee against unreasonable search and seizure. Aiken agreed with Mayfield, repeatedly criticizing the government.
…The Mayfield case has been an embarrassment for the federal government. Last year, the Justice Department's internal watchdog faulted the FBI for sloppy work in mistakenly linking Mayfield to the Madrid bombings. That report said federal prosecutors and FBI agents had made inaccurate and ambiguous statements to a federal judge to get arrest and criminal search warrants against Mayfield.
These AP excerpts are critical, because none of the court documents established that Mayfield was subjected to warrantless searches or eavesdropping. On the other hand, the court documents reviewed by Judge Aiken included traditional search and arrest warrants and affidavits presented to and approved by a fellow District Court Judge. The Justice Department admitted that the fingerprint mishap was “sloppy” and there were some inaccuracies in the affidavits the warrants were based upon, but the key here is that warrants were issued through routine judicial action in addition to or instead of FISA or the Patriot Act. Thus
while Judge Aiken preaches from her political pulpit about the evil Patriot Act and its “extra-Constitutional” powers given to the executive branch (i.e. President Bush), in this case there is only tangible evidence that the FBI obtained probable cause warrants from the federal judiciary, not from anyone in the executive branch. Apparently she was so eager to inject her political views into the national debate over the Patriot Act that she could not restrain herself to wait for a case where FISA or Patriot Act provisions clearly had been violated.The NACDL and the AP versions were in agreement that the FBI conducted searches of Mayfield’s home, law practice, and vehicles, all with traditional probable cause warrants. Likewise, the arrest warrant for Mayfield was supported by a probable cause finding by Judge Jones. Rather than condemn the Patriot Act or FISA, Judge Aiken should have limited her criticism to judicial colleague Judge Jones if she genuinely believed there was no basis for probable cause and explained to the nation why Jones was wrong to issue probable cause warrants. Alas, it is easier to assault a controversial legislative act and an unpopular president than it is to look your colleague in the eye after ignoring his good faith issuance of warrants. Judge Aiken’s written decision provided a political lecture instead of legal justification, and FISA falsehoods rather than facts.
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