Back on the Fence!

OK—a fact, a story, and a change of mind (maybe)….

Fact—in 2012, the federal government made 1856 requests for warrants to the FISA judges. And guess how many of those requests were granted?

1856.

Caveat—I haven’t checked this number out; I’m trusting Gail Collins of The New York Times, those fire-eating liberals up there. But if correct, we could save money on the whole FISA thing and buy a rubber stamp, instead.

Story—in 2004, several bombs were detonated in the Madrid subway system. Spain asked the FBI to search its database of fingerprints after a print was found on a detonating device; the FBI complied, and sent back a response: they had a match. A 100% match.

The FBI’s own records would reveal that there were 20 possible matches, but the FBI focused on Brandon Mayfield, a Portland lawyer who had served in the military (which was, ironically, why his prints were in the database) and who had converted to Islam.

Strange things began happening in the Mayfield home—doors were locked that hadn’t been, a computer screen was half unscrewed, and the computer itself had a hard drive half sticking out. The family became convinced that somebody had been entering the house.

Nor was it just Mayfield—remember those 19 other possible matches? Well, the same thing was going on with them. Oh, and by the way, Spain, which had never been convinced about the fingerprint anyway, now had a suspect a bit more credible than a guy raised in Kansas. It was an Algerian man named Ouhnane Daoud.

In April, Spain notified the FBI that they believed Mayfield’s print was a negative match. Amazingly, the FBI keeps right at it, and on May 6, 2004, the FBI arrested Mayfield. They then turned around and leaked the news to the media, which was how the family found out where poppa was.

Mayfield sat uncharged in prison for 20 days; it took Spain announcing the name of the suspect and international attention before Mayfield was released.

Ready for the punch line?

Mayfield had not left American soil for eleven years prior to the explosions in Spain.

The FBI conducted an internal review and found—hang very tight to your seat here—that they had not misused the PATRIOT Act. I can feel the relief of all you readers out there; relax—have a beer.

Mayfield—well, there’s always somebody to spoil the party, isn’t there—wasn’t satisfied. Explicably, he sued; just as explicably, he won, at least partially. Here’s Wikipedia on the subject:

On November 29, 2006, the U.S. government settled part of the lawsuit with Mayfield for a reported $2 million. The government issued a formal apology to Mayfield as part of the settlement. The settlement allowed Mayfield to pursue a legal challenge against the Patriot Act.[7] The FBI was also cleared of wrongdoing in an earlier internal investigation.

On September 26, 2007, two provisions of the U.S. Patriot Act were declared unconstitutional. Finding in Mayfield's favor, Judge 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," which violates the Constitution of the United States.[8] The Federal government appealed that ruling, and Mayfield's attorney, Elden Rosenthal, argued in front of the Ninth Circuit court on February 5, 2009.[1] The ruling was overturned in December 2009.

It seems that Mayfield had committed two crimes: he had served in the military (which got his prints into the FBI database) and he had converted to Islam (which was a red flag for the FBI).

You could argue that it was an isolated case, but I’d return that 19 other people were also being investigated. But what’s completely troubling is the mindset of the FBI—they are determined, despite all evidence, to get this guy, to nail him for a crime he didn’t commit on foreign soil.

I wrote a couple of days ago about Thomas Friedman and his argument—the time to start a database is not after you have a suspect but before. Persuasive—I bought in briefly. But now I’m wondering—if you want my vote, there have got to be better safeguards against abuse than those now in place. 

Sorry, Tom!