Judge Ignores Probable Cause in Patriot Act Scolding

U.S. District Courts on the west coast 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.

Technorati Tags: Patriot Act Brandon Mayfield Judge Ann Aiken FISA FBI Madrid Bombing Search and Seizure Unconstitutional

General Thinks Mullahs Rational Enough for Nukes

Retired General John Abizaid is working hard to disprove the old adage that “Old generals never die, they just fade away.” Unfortunately, many otherwise astute minds are relying on the former CentCom Commander’s outdated worldview to formulate their own policy positions, particularly in our looming confrontation with Iran over that nation’s nuclear ambitions. If America follows Gen. Abizaid's advice, we may all "just fade away" much sooner than we had envisioned.

The Washington Times’ Arnaud de Borchgrave, whom we have praised previously for sound analysis on other topics, quoted Ret. Gen. Abizaid extensively in his recent column on potential conflict with Iran, “Networked and Lethal.” De Borchgrave subscribes to the view that Iranian President Mahmoud Ahmadinejad, who has aroused international scorn and sympathy in equal portions, is merely a powerless puppet whose strings are controlled by Iran’s Supreme Religious Leader, Ayatollah Ali Khamenei.

This analysis, by itself, is relatively accurate and approaching diplomacy with Iran from that perspective is a somewhat prudent course to follow. However, de Borchgrave draws upon Gen. Abizaid to support his position that military action against Iran would be a mistake. According to both men, using force against Iran to eliminate uranium enrichment sites would be foolish and dangerous because, somewhere under the lecherous layers of power represented by Ahmadinejad and Ayatollah Ali Khamenei, lies a trickling rivulet of revolution that seeks peace with the west and only civilian use of nuclear power for electricity.

We will set aside for the moment the fact that this optimistic view of Iran’s underlying potential for political reform requires, to borrow from Hillary Clinton’s lexicon, “the willful suspension of disbelief.” Senator Clinton used that phrase to bludgeon General David Petraeus’ report to congress on progress in Iraq, where despite abundant evidence of silver linings, critics choose to see only the dark cloud. By contrast, in evaluating Iran’s potential for peaceful coexistence with the West and its Middle East neighbors as a nuclear nation, those same critics embrace wishful thinking and cite historical references to Persian culture and traditions that they conveniently forget have long since been replaced by radical Islamic ideology.

Ret. Gen Abizaid is a strong advocate of what is, for a leader who was previously so instrumental in the War on Terror, a remarkably reckless and illogical policy toward Iran’s nuclear ambitions. Gen. Abizaid sees no reason why Iran should not be allowed to develop nuclear technology, apparently including nuclear weapons, because he mistakenly equates Iran with the former Soviet Union and the current standoff with Iran as just another iteration of the Cold War. The following excerpts set forth de Borchgrave’s and Gen. Abizaid’s reasoning for choosing a nuclear Iran over military conflict to prevent that eventuality:

Mr. Ahmadinejad, who today will put in his third appearance in three years before the U.N. General Assembly, has little power in Iran's theocracy. The key levers are in the hands of Supreme Religious Leader Ayatollah Ali Khamenei. Everything from media to intelligence and including the armed forces and parliament is in his hands. And former Iranian President Hashemi Rafsanjani, who lost the presidential election to Mr. Ahmadinejad in 2005, was elected chairman of Iran's Assembly of Experts, the body that elects the supreme spiritual leader. Mr. Rafsanjani defeated a hard-line cleric who was Mr. Ahmadinejad's friend and protector.

Unlike Mr. Ahmadinejad, who would seem to welcome a military showdown with the United States, if only to force the entire Middle East to side with Iran against the U.S., both Messrs. Khamenei and Rafsanjani are apparently worried about the voices calling for the bombing of Iran's estimated 23 widely scattered underground nuclear facilities.

…Former CentCom commander Gen. Abizaid, who speaks fluent Arabic and whose command extended from Afghanistan to Iraq and the rest of the Middle East and took in a large chunk of Africa from Egypt to the Horn of Africa down to Kenya (27 countries), said bombing Iran would be catastrophic. It would set the entire Middle East ablaze and bring millions more recruits to al Qaeda's anti-U.S. bandwagon.

Gen. Abizaid, now retired, says: "We can stop Iranian expansion. We contained the Soviet Union with tens of thousands of nuclear warheads in missiles targeted against the United States. But we kept talking to Soviet leaders throughout the worst of the Cold War. And we blocked Soviet expansionism and we also learned to live with China after President Nixon restored diplomatic relations."

Iran, the general explains, is a dangerous power that seeks weapons of mass destruction (WMD) and to dominate its neighbors much the way the Soviet Union developed satellite and client states. The United States should deliver clear messages. One or two Iranian nukes should not rattle us. If they fired them, Iran would be instantly vaporized.

"The ayatollahs are heirs to a great civilization," he said in a colloquy at the Center for Strategic and International Studies, "and they are not in the business of collective suicide. Using suicide bombers against Western or pro-Western countries is one thing, but committing national suicide quite another. They aren't mad." And we should talk turkey with Iran at the highest level as soon as possible.

It is stunning that a man with the mindset that “one or two Iranian nukes should not rattle us” was ever selected as the CentCom commander. His comparison between the former Soviet Union and the current Iranian regime is frighteningly naïve, especially from one who many look to as an “expert” on Middle Eastern matters. Ret. Gen. Abizaid either conveniently or cunningly ignores the fact that during the Cold War nuclear capability belonged to only a handful of nations and was a jealously and fanatically guarded secret. There was virtually no concern within the intelligence community that the Soviets would develop a nuclear weapon, sell it to Islamic or other terrorists, and help them to smuggle it out of country to be used against the United States or its allies.

Quite simply, the Soviets feared that any nuclear weapon used against the United States would be blamed on them and retaliation would not be long in coming. Thus it was in the self-interest of the Soviets not to share nuclear technology with radicals who might strike the United States rashly. Though dangerous in its own right, the Soviet Union wielded nuclear weapons in large quantity as a demonstration of national strength. There is far more fear that a nuclear Iran would use or sell its weapons than there ever was that the Soviets would do so. The Soviets likewise did not harbor any sympathy for or ally themselves with Muslims and were understandably alarmed by the potential consequences of any nuclear Islamic nation.

Ret. Gen. Abizaid seems to think that our ability to “instantly vaporize” Iran should make us confident that Iran would never be irrational enough to use nuclear weapons against America. In essence, the general advocates applying the strategy of deterrence, or Mutually Assured Destruction (MAD) to Iran. MAD was crafted to defend against an enemy's all out assault, an attack intended to cripple America with strikes against multiple cities simultaneously. It was never meant as a deterrent against terrorists who would be perfectly satisfied with a random detonation in just one American city. To equate MAD's capacity to deter the Soviet Union with a similar effect on radical Islamic terrorists is illogical in the extreme.

It is baffling why this so-called expert would not prefer keeping nuclear weapons out of Iranian hands in the first place. Radical Islamic terrorists are not known to be reasonable, rational people. Gen. Abizaid would like to believe that the Iranian nation as a whole is not suicidal and that “they aren’t mad.” He forgets, however, that the weaponry of Iran is in the hands of a small number of religious zealots who preach loudly of their role in ushering in an apocalyptic future. The Iranian nation may not be bent on collective suicide, but its radical leaders have no such qualms about martyring themselves and their nation to fulfill prophecy.

The general’s portrait of Iran as an inherently peaceful nation fails to address what is undeniably the greatest source of concern regarding Iran: that it will provide nuclear weapons and/or technology to terrorist groups who would not hesitate to use them against America and its allies. A nuclear-armed Iran would be unlikely to engage in a tactical nuclear conflict with America, but most Americans would not share Gen. Abizaid’s opinion that we should not be rattled by “one or two Iranian nukes.” Which cities in Europe would Gen. Abizaid be so casually willing to lose? What would be left of Israel after “one or two Iranian nukes?” The nuclear devices would detonate and we would face then the same question we face today: Should we take action to destroy Iran’s uranium enrichment and nuclear technology sites? The only difference would be the tragic loss of millions of lives due to a nuclear terrorist attack that would have been preventable.

Given Iran’s well-documented record of funding, equipping, training, and transporting terrorists who attack American civilians and military forces on a daily basis and who have struck at Israel for decades, it requires the willful suspension of disbelief to think Iran would not sell or give freely its future nuclear weapons to terrorist groups it already supplies with weapons. The confusion after a nuclear terrorist attack would be paralyzing to America. Some would blame it on Russians; others would insist it was a preemptive strike by an increasingly aggressive China; Al Qaeda would naturally be suspected, but in the aftermath of such an attack it would be difficult to establish who orchestrated the event and how to respond. The knee-jerk reaction would be to annihilate whatever nation produced the weapon and supplied it to terrorists.

Gen. Abizaid appears to have great respect for Iran and its Persian culture and traditions. He should recognize that the best way to preserve Iran’s people and culture is to prevent its current radical regime from ever developing nuclear weapons that, through their existence and potential use or sale, would jeopardize the future of the entire Iranian nation. Neither the world nor the Iranian people can afford to take the risk that mullahs with nuclear weapons would act responsibly in possession of nuclear weapons. Their record terror sponsorship, their stated vision of a world without Israel, and their hatred for America should rattle us out of our diplomatic course that has allowed Iran to bring over 3,000 centrifuges online and race toward sufficient uranium enrichment for weapons production.

Gen. Abizaid is a trusting soul, but trust in the intentions of Islamic radicals in pursuit of nuclear weapons may prove suicidal. This may be the only situation in recorded history where America should take the word of Ahmadinejad and his mullah puppeteers at face value and ignore the advice of one of our decorated retired generals.

Technorati Tags: General John Abizaid Iran Ayatollah Khamenei Ahmadinejad Iranian Nuclear Weapons War on Terror Cold War

Star-Crossed Biofuel Lovers Overcome by Gasses

Years ago, the most popular ice-breaker line when a couple first met was, “So, do you come around here often?” As astrology developed into a cottage industry, awkward moments were made less excruciating when couples began asking, “So, what’s your sign?” For today’s romantics, a generation of global warming/climate change lemmings, the new ice-breaker (literally) seems to be, “So, can you believe this global warming? What are you doing to reduce greenhouse gasses?” My eco-pulse has quickened by merely writing a brief description of such an encounter!

Not only is that question a unique conversation starter, it also demonstrates a keen awareness of the hip sociopolitical phenomenon sweeping the globe. The War on Terror or Operation Iraqi Freedom are mere bylines compared to what many believe is the most pressing story of our time. The following headlines from today’s news coverage are only a small sampling of the countless global warming/climate change stories dominating global media outlets each day:

“Global Majority Wants Action on Climate Change.”
“Global Warming Leaves Russians Cold.”
“UN Chief Urges Immediate Climate Action.”
“Schwarzenegger Urges UN to Move on Climate Change.”
“Rising Seas Threaten US Historical Sites.”

Could anything send a more convincing message of responsibility and commitment to a prospective “soul mate” than passionately expressing a lifelong dedication to reducing one’s greenhouse gas emissions? Any woman will embrace a man’s efforts to control his gaseous emissions of any kind, but particularly those pesky greenhouse gasses that are allegedly going to be the death of us all one day. To global warming devotees, bulging biceps or bounteous beauty take a back seat to biofuel usage as desired mate traits.

Yet what will happen to the star-crossed eco-lovers when they learn that a trait once held as a treasured virtue is actually a vice? Such love spell breaking news appeared yesterday in an article by Times (London) reporter Lewis Smith titled, “Study: Biofuels May Produce More Greenhouse Gas than Oil.” The thump you would have heard, if more media outlets had published the story, was the sound of millions of collective environmentalist jaws hitting the floors of their hybrid vehicles as they realized how lovingly and blindly they had embraced biofuels that now appear to be uglier than their declared nemesis, big oil. As our farmers rapidly convert their fields to accommodate the burgeoning ethanol industry rather than food production while millions starve in agriculture-poor African nations, the scientific revelation that ethanol and rapeseed biofuels produce high levels of nitrous oxide should be particularly disheartening to ethanol-enchanted environmentalists.

It’s not as if the study was part of a global conspiracy by big oil to further its allegedly insidious interests. The study was a collaborative effort of British, American, and German researchers, one of which was a Nobel Prize-winning expert on ozone. Before you buy a hybrid vehicle or applaud your congressman for working to expand ethanol production as a means to save the world from global warming catastrophe, pause a moment and examine what renowned scientists, rather than Alarmist Al Gore, discovered about those bewitching biofuels (bold emphasis added by Capital Cloak):

A renewable energy source designed to reduce greenhouse-gas emissions may be contributing more to global warming than fossil fuels, a study suggests.

Measurements of emissions from the burning of biofuels derived from rapeseed and corn have been found to produce more greenhouse gas emissions than they save.

Other biofuels, especially those likely to see greater use over the next decade, performed better than fossil fuels, but the study raises serious questions about some of the most commonly produced varieties.

Rapeseed and corn biodiesels were calculated to produce up to 70 percent and 50 percent more greenhouse gases, respectively, than fossil fuels.

The concerns were raised over the levels of emissions of nitrous oxide, which is 296 times more powerful a greenhouse gas than carbon dioxide.

Scientists found that the use of biofuels released twice as much as nitrous oxide as previously realized.

…The findings illustrated the importance, the researchers said, of ensuring that measures designed to reduce greenhouse-gas emissions are assessed thoroughly before being hailed as a solution.

"One wants rational decisions rather than simply jumping on the bandwagon because superficially something appears to reduce emissions," said Keith Smith, a professor at the University of Edinburgh in Scotland and one of the researchers.

Corn for ethanol is the prime crop for biofuel in the U.S., where production for the industry has recently overtaken the use of the plant as a food. In Europe the main crop is rapeseed (one variety of which is canola), which accounts for 80 percent of biofuel production.

"The significance of it is that the supposed benefits of biofuels are even more disputable than had been thought hitherto," Smith told Chemistry World magazine.
…But they concluded that the biofuels "can contribute as much or more to global warming by N2O [nitrous oxide] emissions than cooling by fossil-fuel savings."

The research is published in the journal Atmospheric Chemistry and Physics, where it has been placed for open review.

The research team consisted of scientists from Britain, the U.S. and Germany, and included Professor Paul Crutzen, who won a Nobel Prize for his work on ozone.

…Dr. Dave Reay, also of the University of Edinburgh, used the findings to calculate that with the U.S. Senate aiming to increase corn-ethanol production sevenfold by 2022, greenhouse-gas emissions from transportation will rise by 6 percent.

In their rush to gain the political favor of environmentalists, congressmen are tip-toeing through and around a growing body of expert scientific research that is debunking the hysteria over greenhouse gasses almost as fast as Al Gore produces them jetting around in gas guzzling private aircraft or keeping cool in his palatial homes.

Devotion tends to blind one to the faults of his or her beloved. Environmentalists enjoyed an energetic elopement with ethanol and other plant-derivative biofuels. Now that the flaws of their betrothed have been exposed by a Nobel Prize winner and an international team of environmental experts, the relationship they so cherished with biofuels may soon wind up wrecked on the rocky shoals of reality. The honeymoon with ethanol has led only to a mournful rendition of “Love on the Rocks.” Neil Diamond proved prophetic with his second line, “Ain’t no surprise.”

Technorati Tags:
Biofuels, Ethanol, Rapeseed, Greenhouse Gasses, Global Warming, Climate Change, Al Gore, Nitrous Oxide, Greenhouse Emissions