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

Tenet: Interrogations MVP of Terror War

Washington insiders are known for making startling revelations in the media immediately prior to the date on which their memoirs hit bookstore shelves. Former CIA director George Tenet is no exception. His book, At the Center of the Storm: My Years at the CIA, available for sale Monday, has already been a hot topic of discussion in the media, as portions of it have been leaked along with previews of Tenet’s appearance on CBS’ “60 Minutes” program to be aired Sunday. Speculation has run rampant that Tenet would anger the White House with his assessments of the War on Terror, but the NY Sun reported today that Tenet adamantly defended the Bush administration’s use of “aggressive interrogations” in a bold and straightforward manner uncommon among DC’s elite.

Tenet, addressing the issue of interrogations and alleged torture so ferociously opposed by Democrats, reportedly stated:

"I know that this program has saved lives. I know we've disrupted plots," Mr. Tenet said in a "60 Minutes" interview set to air Sunday before the release of his new book. "I know this program alone is worth more than the FBI, the Central Intelligence Agency, and the National Security Agency put together have been able to tell us," he said.

Consider that last sentence again carefully. In the estimation of a man who served as DCI under Presidents Clinton and Bush, aggressive interrogations, presumably including the technique known as “water boarding” (previously described by Capital Cloak here) have been the most effective tool in protecting America from terrorism. Interrogation of enemy combatants, so loudly denounced by war critics is more valuable than the FBI’s counterterrorism section and Joint Terrorism Task Forces found in every major American city. Aggressive interrogations yield more actionable intelligence than the NSA’s electronic and communications monitoring capabilities so feared by privacy scaremongers. Interrogations are worth more than CIA covert operations and intelligence analysts’ reports.

It is a remarkable statement from a man whose reputation and marketability are so closely intertwined with public perception of the CIA. The capture of these enemy combatants, and often the initial interrogations, are military rather than CIA operations, and thus Tenet is crediting Defense Intelligence (with additional assistance from CIA) for extracting more actionable intelligence than all other agencies and programs combined. When one considers the enormous flood of documents, captured transmissions, and reports from citizen informants currently swamping American intelligence agencies, one begins to realize how critical it is to obtain information directly from captured terrorists with firsthand operational knowledge of terror plots, terror leaders, names, aliases, locations, dates, times, and travel methods.

Theoretically, all of these pieces of a terror plot puzzle might eventually be put together by American intelligence. The NSA may capture a phone call in which vague references to an attack in America or Britain are made. Defense Intelligence may find laptop computers, surveillance videos, and maps on which targets are circled. The FBI may receive a warning from an anonymous citizen that Islamic men were talking about a bomb in New York. The pieces of the puzzle may be many and seemingly unrelated. That is complicated by the continued failure of intelligence agencies to share newly obtained information real time with each other, thus the chances of someone at one of these agencies putting the pieces together and discovering the big picture are slim indeed.

That entire puzzle process is typically avoided when enemy combatants are interrogated, and yes, interrogated aggressively. There is no need for a lucky analyst to discover a plot when the terrorists themselves, under moderate duress, reveal their plans and how to find the plotters. FISA warrants, privacy rights of Americans, the Patriot Act, FBI’s Carnivore, all the anti-terror tools liberals fear and despise are much less productive than direct capture and interrogation. That logic is at the heart of President Bush’s strategy to fight terrorists in the Middle East to prevent fighting them in America. He recognized long ago that taking the gloves off when interrogating captured al Qaeda operatives was the only sure way to infiltrate their organization and hit them before they hit America again. Of course, surveillance and other tools are still necessary for detection of so-called homegrown terrorists and should not be abandoned. Still, the arguments for aggressive interrogation, whether from President Bush, George Tenet, or former Defense Secretary Rumsfeld, have always been compelling and convincing.

Liberal (and some conservative) critics of the Bush administration’s handling of the War on Terror and national security must face three difficult questions: You are opposed to the Patriot Act; you are opposed to the NSA domestic surveillance program; you are opposed to FBI’s carnivore and other Internet mining tactics; you are opposed to the war against al Qaeda and other terrorists in Iraq; you are opposed to holding enemy combatants for interrogation; you are opposed to any form of aggressive interrogation, including water boarding; you are in favor of illegal immigration; you are opposed to citizen ownership of guns; are there any anti-terror policies you support? How do you propose we obtain intelligence before terrorists strike America again? Would you prefer to be incinerated by a bomb or see a terrorist frightened into revealing the location of that bomb because he “thought” he was drowning?

While it may seem improbable to most Americans, lulled as they are into believing they are safe, men like George Tenet and President Bush confront such doomsday scenarios daily. Note the strain and sense of urgency Tenet felt in his daily work:

"We don't torture people," the former director told CBS. "The context is it's post-September 11. I've got reports of nuclear weapons in New York City, apartment buildings that are going to be blown up, planes that are going to fly into airports all over again, plot lines that I don't know. … I'm struggling to find out where the next disaster is going to occur."

Tenet has been criticized by many within and outside the intelligence community for his perceived failure to put the puzzle together to prevent 9/11. However, such criticism sheds light on the critics and their motives. Prior to 9/11 and the subsequent wars in Afghanistan and Iraq, America relied solely on our intelligence agencies for understanding and penetration of terrorist groups. The War on Terror, however, through “aggressive interrogation,” has given America access to and understanding of the terrorists themselves. If American intelligence agencies could have received information in that manner prior to 9/11, Tenet and others would have had a much better chance to prevent the attack. Senators and Congressmen know this, but to keep the media spotlight on themselves they condemn these methods and list interrogation tactics among the list of reasons why the president is a “war criminal” or deserves impeachment.

Thankfully, Tenet recognized the overwhelming value and success of the interrogations at Guantanamo and other locations, and rose to defend the Bush Administration’s use of these tools to protect Americans from further terror attacks. Whether or not Tenet criticizes the administration for other perceived shortcomings remains to be seen, but he should be recognized for courageously and publicly warning against abandoning the tools and techniques that have proven most effective in thwarting terrorists: using their own knowledge against them.

Why You Should Care About CAIR's Role As Islamic Advisor to Government

Imagine that you are the leader of a counter-terrorist or SWAT team that has received credible corroborated intelligence pinpointing the residence of a suspected Islamic terrorist in your city. You obtain an arrest warrant for the terrorist and a search warrant for the residence, and you meticulously plan a tactical raid designed to surprise and quickly subdue the suspect, thus minimizing risk to other occupants of the residence. As you are about to enter the briefing room to address your team prior to the raid, a high-ranking supervisor pulls you aside and asks, “Have your team members received the Council on American-Islamic Relations (CAIR) Muslim cultural sensitivity training, and are you incorporating CAIR’s demands into your tactical plan?”

You realize you haven’t included any CAIR demands because they will get your team injured or killed since they fly in the face of established law enforcement tactics. You recently attended a Muslim sensitivity training session for the law enforcement/intelligence community sponsored by CAIR and the US Department of Justice, and pressure is increasing to formulate different operational plans for Muslim suspects than those in place for suspects of other faiths. You confidently assure the top brass supervisor you are in complete compliance with CAIR, and in the pre-raid briefing you tell your team the following:

1. Rapid entry violates the dignity of a Muslim home, so despite the suspect’s history of violence and weapons possession, you must stand on the porch knocking and hoping someone will open the door for you. Sure, rapid entry maintains the element of surprise and is far safer for the raid team, but those are unimportant when a Muslim house in involved.

2. Protective shoes or tactical boots should be removed prior to entry into the home. Don’t step on the prayer rug either. If you must breach the door, do so with dignity, and instead of the dynamic entry tactics we’ve drilled into you for your safety, stop in the doorway (also known as the fatal funnel) and remove those shoes/boots. Enter the home and make the arrest in your socks. Please don’t step on sharp objects, broken glass, syringes, or any of the other hazards you wear boots for in the first place.

3. Don’t look at women in the home and give them the opportunity to dress and cover their heads. Yes I know it is a fatal mistake to take your eyes off of anyone in the home until they and the residence have been secured and swept for weapons, but we don’t want to embarrass them, so avert your eyes and pray they don’t kill you while your back is turned.

4. To preserve dignity, don’t enter any occupied bedrooms or bathrooms, even if that is where the suspect is located. Stay in another room and call for the terrorist, relying on his/her willingness to come into the living room and submit to an arrest. If the terrorist is sleeping, don’t enter the room to wake him/her, just wait until he/she awakens.

5. K9 teams must not enter the home because this would be a desecration. Yes, I am aware that K9 teams are invaluable in detecting materials used to construct IEDs and other munitions, some of which may be present in an IED the suspect may have placed in the home specifically to kill an entire team such as ours, but you will have to find these materials without K9 assistance. Sorry.

6. Don’t use cameras or camcorders to document the raid due to the risk of filming individuals in varying states of dress. Of course I am familiar with the phrase “a picture is worth a thousand words,” but in a Muslim home we should not photograph the evidence or anything else.

7. Prayers must not be disturbed. If the suspect is praying when the raid occurs, he/she must be allowed to finish praying. Of course the terrorist may have concealed a weapon under the prayer rug or on his/her person, but you will stand there awkwardly and halt your standard procedures to secure the residence and assure officer/agent safety until the terrorist stops praying and gets off the prayer rug.

8. If you are not Muslim, don’t touch any holy books, Korans or religious
artifacts without asking the suspect’s permission. Of course, the terrorist will not give that permission, so we have to hope nothing dangerous or of value as evidence is hidden in those books or artifacts.

9. If the suspect flees to the local mosque, the same rules above apply, only we will be outnumbered 100 to 1, so be ready to retreat in your socks and don’t trip over those shoes you took off when you entered!

If the above scenario seems exaggerated or ludicrous to you, then you should empathize with intelligence/law enforcement personnel who are receiving increasing pressure to implement such Islamic “cultural sensitivity” in daily operational planning. All of the above rules were actually recommended by CAIR at a “Muslim cultural sensitivity” training I attended in 2004. Americans should be questioning why any government departments rely on CAIR for “cultural sensitivity” training, particularly given CAIR’s long suspected and well documented associations with known terrorists and terrorist networks. At least three major departments tasked with fighting and investigating terrorism utilize CAIR as their primary advisor on Islamic issues, and think nothing of taking CAIR leaders on tours of security operations at American airports. What does CAIR contribute to investigative efforts in return for this preferential treatment? CAIR opposes the Patriot Act, and joined the lawsuit against the NSA’s domestic anti-terrorist surveillance program. It is easy to understand that group’s objections to those anti-terror measures, since they both assure that the relationships between CAIR and terrorist organizations can be more closely monitored. Surely there is a better organization available to represent the views of America's Muslims than the highly controversial CAIR.

The CAIR-DOJ training session I attended in 2004 was fascinating; not for any cultural understanding obtained, but for the pure suspense of wondering whether the intelligence/law enforcement personnel would rush the stage and throttle the CAIR representative. As each of the above listed CAIR demands were presented to the audience, the tension in the auditorium became increasingly palpable. From an operational and agent/officer safety perspective, none of the CAIR demands were acceptable. Yet, the attendees were told that complying with those demands was the only way Muslims would cooperate with investigations in their communities. One local police officer in attendance, who visibly could not stand another minute of the “cultural sensitivity” training rather heatedly asked the CAIR representative the following question: “You’ve given us a list of demands that will get us killed, but what are YOU doing to get the Muslim communities to turn in the terrorists living among them? Is this a religion of peace or not?” The CAIR representative had no response and stood glaring at the officer for what seemed like an eternity with obvious disdain for law enforcement on her face. The tension was broken only when the DOJ host stepped in and called for an early lunch.

Senator Barbara Boxer, D-CA, has now joined the ranks in Washington who are wondering why CAIR seems to be the preferred Muslim group advising the Federal government and many state and local governments throughout the nation. To her credit, Senator Boxer, who was reportedly preparing to bestow an accomplishment award on a CAIR official, received complaints from law enforcement and intelligence personnel and listened to their criticisms of CAIR. She asked staff to research CAIR and after this scrutiny came to the conclusion that the Federal government had embraced CAIR with good intentions, namely to provide more Islamic cultural awareness within government, but that this was a mistake because of CAIR’s numerous associations with terrorists. Senator Boxer then rescinded the award to be presented to the CAIR official.

The “cultural sensitivity” training offered by CAIR and DOJ raises the important issue of the much-adored by the left “separation of church and state.” I have never seen any offered cultural awareness training for dealing with Catholic, Mormon, Buddhist, or Hindu suspects or how to behave when I enter homes where those are the declared religions. Why is Islam singled out for special treatment and consideration as a “culture” rather than a religion? If the government wants to make its intelligence/law enforcement personnel more aware of one religion’s beliefs, then it should offer a full spectrum of religious awareness and sensitivity courses including all religions, not just the one that complains loudest when investigated, justifiably, for terrorist activity. Requiring law enforcement to adopt separate rules and tactics to “maintain the dignity” of only one religion is a more blatant violation of the alleged separation of church and state than prayer in school. At least prayer in school can be non-denominational and voluntary. Workplace cultural sensitivity training is neither. It benefits only one religion and is mandatory.

If government agencies continue to rely on CAIR for understanding Islam in America, we will see a continued effort to render the intelligence and law enforcement communities impotent to investigate terrorism effectively in the very communities where terrorists are embedded. The United Kingdom is experiencing this same challenge at an even faster pace. Thus despite the London Subway bombings in July 2005 and several foiled plots involving home-grown terrorists, our British colleagues are facing pressure to abide by similar demands as those set forth by CAIR.

Infiltrating, identifying, locating, and investigating/eliminating terrorists are critical and dangerous duties. We should keep our shoes and boots on and our guard up when facing a determined and underestimated enemy, rather than caring so much about CAIR’s self-interested counsel.

Technorati Tags: Council on American-Islamic Relations Department of Justice Barbara Boxer Patriot Act London Subway Bombings cultural sensitivity NSA terrorism Religion of Peace Islamic Extremist CAIR