FBI apologizes to lawyer held in Madrid bombings
Man feels he was singled out because he’s Muslim
PORTLAND, Ore. — Offering a rare public apology, the FBI admitted mistakenly linking an American lawyer’s fingerprint to one found near the scene of a terrorist bombing in Spain, a blunder that led to his imprisonment for two weeks.
The apology Monday came hours after a judge dismissed the case against Brandon Mayfield, who had been held as a material witness in the Madrid bombings case, which killed 191 people and injured about 2,000 others.
Mayfield, a 37-year-old convert to Islam, sharply criticized the government, calling his time behind bars “humiliating” and “embarrassing” and saying he was targeted because of his faith.
“This whole process has been a harrowing ordeal. It shouldn’t happen to anybody,” said Mayfield. “I believe I was singled out and discriminated against, I feel, as a Muslim.”
Karin Immergut, the U.S. attorney in Oregon, denied Mayfield had been a target because of his religion and maintained that the FBI had followed all laws in the case.
Court documents released Monday suggested that the mistaken arrest first sprang from an error by the FBI’s supercomputer for matching fingerprints and then was compounded by the FBI’s own analysts.
FBI promises to review practices
“The FBI apologizes to Mr. Mayfield and his family for the hardships that this matter has caused,” the bureau said in a statement. The agency also said it would review its practices on fingerprint analyses.
“We need to know more about how this happened. All of us in this country need to know more about how this type of mistake can be made,” said U.S. Public Defender Steve Wax, Mayfield’s attorney.
Mayfield, a former Army lieutenant, was released last week. But he was not altogether cleared of suspicion; the government said he remained a material witness and put restrictions on his movements.
Global dragnetThose restrictions were lifted Monday.
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U.S. District Judge Robert Jones said all property that had been seized from the Mayfield residence should be returned, and all copies of Mayfield’s personal documents held by the federal government were to be destroyed.
The case began when FBI fingerprint examiners in Quantico, Va., searched for possible matches to a digital image of a fingerprint found on a bag of detonators the day of the Spanish bombings on March 11.
The system returned 15 possible matches, including prints belonging to Mayfield, on file from a 1984 burglary arrest in Wichita, Kan., when Mayfield was a teenager.
Three separate FBI examiners narrowed the identification to Mayfield, according to Robert Jordan, the FBI agent in charge of Oregon. A court-appointed fingerprint expert agreed.
Spain doubted any connection
The FBI maintained its certainty even as Spanish authorities said by mid-April that the original image of the fingerprint taken directly from the bag did not match Mayfield’s, Wax said.
Last week, Spanish authorities said the fingerprints of an Algerian man were on the bag. Jordan said FBI examiners flew to Spain, viewed the original print pattern of the fingerprint on paper, and agreed that it was not Mayfield’s.
As additional evidence in support of Mayfield’s arrest, the FBI pointed to Mayfield’s attendance at a local mosque, his advertising legal services in a publication owned by a man suspected to have links to terrorism, and a telephone call his wife placed to a branch of an Islamic charity with suspected terrorist ties.
They also noted that Mayfield represented a man in a child custody case who later pleaded guilty to conspiring to help al-Qaida and the Taliban fight U.S. forces in Afghanistan.
According to court documents, FBI agents began their surveillance of Mayfield two weeks after the attacks in the Spanish capital. Under a provision of the U.S. Patriot Act, they entered his home without his knowledge — but aroused the family’s suspicion by bolting the wrong lock on their way out and leaving a footprint on the rug that didn’t match any family members.
During a later raid, FBI agents took Mayfield’s computers, modem, safe deposit key, assorted papers, as well as copies of the Quran and what they classified as “Spanish documents” — apparently Spanish homework by one of Mayfield’s sons.
Mayfield, who runs a small Portland law office, was never facing any formal charges. He was arrested as a material witness, and held in the Multnomah County Detention Center on the chance that he might have information about the Spain bombings.
At a press conference, Mayfield talked about his time behind bars, initially in solitary confinement and then in the jail’s mental ward. Mayfield feared for his safety when inmates began to recognize him on the nightly news.
“The climate of fear of terror makes this a cautionary tale about the way in which that fear can ensnare an innocent person in the type of abuse to which Mr. Mayfield was subjected,” Wax said.
© 2011 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
Brandon Mayfield (born July 15, 1966) is an American attorney in Washington County, Oregon. He is best known for being erroneously linked to the 2004 Madrid train bombings. On May 6, 2004, the FBI arrested Mayfield as a material witness in connection with the Madrid attacks, and held him for over two weeks. Mayfield was never charged, and an FBI internal review later acknowledged serious errors in their investigation. Ensuing lawsuits have resulted in a formal apology from the U.S. government and a $2 million settlement. An initial ruling declared some provisions of the USA PATRIOT Act unconstitutional, but the United States government appealed, and the ruling was overturned.
Mayfield’s case has been referenced in numerous scientific, political, and social journals.
Mayfield was born in Coos Bay, Oregon and grew up in Halstead, Kansas. He served in the United States Army Reserve from 1985 to 1989, and then as an officer in the Army in Bitburg, Germany from 1992 to 1994. He met his wife Mona, an Egyptian national and the daughter of a college professor, on a blind date in Olympia, Washington in 1986, and converted to Islam shortly afterwards. They have lived in Beaverton, Oregon off and on since 1989. Although he was a regular worshiper at a Beaverton mosque prior to his arrest, his colleagues were unaware of his religious beliefs. The imam of the mosque has described Mayfield as “very patriotic”. Mayfield has four children.
He studied law at Washburn University and Lewis and Clark College, receiving his law degree from Washburn in 1999, and practicing family law in Newport before moving to the Portland area. Mayfield performed work for the Modest Means Program of the Oregon State Bar, which matches attorneys who are willing to work at reduced rates for low-income clients. In 2003 he offered legal aid to Jeffrey Leon Battle, one of the Portland Seven, a group of people convicted of trying to travel to Afghanistan to help the Taliban. Battle at the time was involved in a child custody case.
 Arrest and detention
Following the September 11, 2001 attacks, Mayfield was concerned for the safety of his children and wife, and according to his father, he suspected that he was under surveillance by the federal authorities. In the weeks before his arrest, Mayfield’s family was under the impression that their house had been broken into at least twice, although nothing was stolen. According to court documents, the FBI used National Security Letters in order to wiretap his phones, bug his house, and search his house several times.
Fingerprints on a bag containing detonating devices, found by Spanish authorities following the Madrid commuter train bombings, were initially identified by the FBI as belonging to Mayfield (“100% verified”). According to the court documents in judge Ann Aiken‘s decision, this information was largely “fabricated and concocted by the FBI and DOJ”. When the FBI finally sent Mayfield’s fingerprints to the Spanish authorities, they contested the matching of the fingerprints from Brandon Mayfield to the ones associated with the Madrid bombing. Further, the Spanish authorities informed the FBI they had other suspects in the case, Moroccan immigrants not linked to anyone in the USA. The FBI completely disregarded all of the information from the Spanish authorities, and proceeded to spy on Mayfield and his family further.
As was discovered during the court case, even the FBI’s own records show that this fingerprint, despite the sworn testimony of FBI and DOJ agents, was in all reality not an exact match but only one of 20 “similar” prints to the ones retrieved from Madrid. Based on that list of people with “similar prints” the FBI launched an extensive investigation of all 20 individuals using Letters of National Security. The investigation included medical records, financial records, employment records, etc. on all 20 people and their families. It was during this time that Brandon Mayfield’s name rose to the top of the list.
The FBI arrested Mayfield at his offices in West Slope, an unincorporated suburb of Portland. The arrest was similar to the then-recent Mike Hawash case, under a material witness warrant rather than under charge; he was held with no access to family and limited access, if any, to legal counsel. The FBI initially refused to inform either Mayfield or his family why he was being detained or where he was being held.
Later, the FBI leaked the nature of the charges to the local media and the family learned of the charges by watching the local news. He was at first held at a Multnomah County jail under a false name; he was later transferred to an unidentified location. His family protested that Mayfield had no connection with the bombings, nor had he been off the continent in over 11 to 14 years.
Before his arrest, Spanish authorities informed the FBI in a letter from April 13, that they reviewed the fingerprint on the bag as a negative match of Mayfield’s fingerprint, though this letter was not communicated to Mayfield’s attorneys. On May 19 the Spanish authorities announced that the fingerprints actually belonged to an Algerian national, Ouhnane Daoud; Brandon Mayfield was released from prison when the international press broke the story the next day — May 20, 2004. A gag order remained in force for the next few days. By May 25, the case was dismissed by the judge, who ordered the return of seized evidence and unsealing of documents pertaining to his arrest.
The FBI conducted an internal review of Mayfield’s arrest and detention, concluding that although he was not arrested solely due to his religious beliefs, they may have contributed to investigator’s failure to take into account the Spanish concerns over fingerprint identification. The FBI issued a press release announcing the report’s conclusion that they had not misused the USA PATRIOT Act in the investigation. Civil libertarians and the ACLU nonetheless consider Mayfield’s detention a misuse of the material witness statute.
Although the FBI afterwards apologized for their acts, Mayfield filed several lawsuits over this invasion of his privacy. One sought to force the government to return or destroy copies of items seized from his home. Another, which was argued before U.S. District Court Judge Ann Aiken on July 15, 2005, challenged the law which was used against him as unconstitutional. The Federal Government filed several motions to have Mayfield’s case dismissed as a matter of national security, or national secrets, but these were denied by Judge Aiken.
 Court’s ruling and aftermath
The case was heard by the Ninth Circuit Court of Appeals. Among the issues on appeal was whether materials removed from Mayfield’s house, including DNA samples taken from his family’s personal toothbrushes, were to be destroyed or preserved. The Federal Government assumed the position that materials must be preserved so that they can be referred to, if more lawsuits are brought in the future.
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. 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. The Federal government appealed that ruling, and Mayfield’s attorney, Elden Rosenthal, argued in front of the Ninth Circuit court on February 5, 2009. The ruling was overturned in December 2009.
 References and notes
- ^ a b c d Holley, David (March 26, 2009). “Lawyer unjustly jailed working toward “normal””. Portland Tribune.
- ^ a b http://www.ord.uscourts.gov/rulings/04-cv-1427Opinion.pdf
- ^ Wax, Steven T. (2008). Kafka comes to America. Other Press. pp. 154. ISBN 9781590512951.
- ^ USDOJ Report
- ^ Fingerprint misidentification of Brandon Mayfield – Federal Bureau of Investigation
- ^ Administration Abuses Material Witness Law – TalkLeft.com
- ^ Wrongly accused man settles bomb suit – news.yahoo.com
- ^ McCall, William (2007-09-26). “2 Patriot Act Provisions Ruled Unlawful”. AP via ABC News. Retrieved 2007-09-26.[dead link]
- ^ “Mayfield v. US, No. 07-35865”. FindLaw. December 11, 2009.
 External links
- Portland Oregonian: Residue of arrest clutters Mayfield’s present, future
- Portland Oregonian: Material witness law is being abused
- Portland Tribune: How the FBI’s arrest of suspected terrorist Brandon Mayfield unraveled
- The Australian: US backs down on detained lawyer
- WIRED Magazine: January 2006 analysis of Mayfield case
- Washington Post: Apology Note (text of official note of apology)
- Democracy Now interview on November 30, 2006 with Brandon and Mona Mayfield
- Jackson Hole News & Guide: Spence (Mayfield’s attorney) says $2M settlement underscores loss of freedom
- Associated Press care of MSNBC: FBI apologizes to lawyer held in Madrid bombings
- FBI’s May 24, 2004 Statement on Brandon Mayfield Case
- US District Court – Oregon: re Brandon Mayfield
- Washington Post: U.S. Settles Suit Filed by Ore. Lawyer
- CNN: Lawyer wrongly arrested in bombings: ‘We lived in 1984’
- New York Times: U.S. Will Pay $2 Million to Lawyer Wrongly Jailed
- Judge Ann Aiken’s Opinion in the Sept 26 2007 Decision
ARTICLES ABOUT BRANDON MAYFIELD
Two provisions of the USA Patriot Act are unconstitutional because they allow search warrants to be issued without showing probable cause, a federal judge ruled Wednesday.
September 27, 2007
The federal government agreed to pay $2 million to a man wrongly jailed in connection with the 2004 terrorist bombings in Madrid, and it issued a formal apology.
November 30, 2006
The agency wrongly implicated an Oregon lawyer in a deadly train bombing in Madrid because the F.B.I. culture discouraged fingerprint examiners from disagreeing with their superiors.
November 17, 2004
Brandon Mayfield, Portland-area lawyer mistakenly arrested by FBI in connection with Madrid train bombings in March, sues government, contending that his rights were violated because of his Muslim faith; seeks unspecified damages and ruling that central provisions of USA Patriot Act are unconstitutional
October 5, 2004
A lawyer who was mistakenly linked to the Madrid train bombings said that the F.B.I. searched his home and jailed him in part because of his Muslim faith.
September 14, 2004
Editorial contends that Bush administration has provided many examples of how unfettered law enforcement system can destroy lives of innocent people out of hubris or carelessness; cites cases of Purna Raj Bajracharya, tourist from Nepal who spent three months in solitary confinement for videotaping public building, Brandon Mayfield, Oregon lawyer who was held for two weeks in connection with bombing of commuter trains in Madrid even though he had never been to Spain, and Capt James Yee, chaplai…
July 4, 2004
Spanish law enforcement officials investigating Madrid terrorist bombing are challenging key aspects of US version of events; say FBI officials rejected evidence that they had wrongly arrested Portland, Ore, lawyer Brandon Mayfield; disagreement centers on fingerprints lifted from bag discovered near March 11 bombing; FBI officials maintained prints matched those of Mayfield, who was jailed for two weeks, and told federal prosecutors that Spanish officials were ‘satisfied’ with their conclusion…
June 5, 2004
Spanish high court judge issues international arrest warrant for Daoud Ouhnane, Algerian whose fingerprint was found on plastic bag containing traces of explosives and seven detonators of type used in Mar 11 train bombings in Madrid; FBI had mistakenly identified fingerprint as that of Brandon Mayfield, lawyer in Portland, Ore
June 1, 2004
Joel Spenner letter on May 26 editorial on Brandon Mayfield case holds real terrorists plot against us while Federal Bureau of Investigation wastes resources pursuing its preconceived notions; drawing
May 29, 2004
Reza Shadmehr letter on May 26 article scores two-week jailing of Brandon Mayfield without charges; drawing
May 29, 2004
Wednesday, Oct 3, 2007 07:01 ET
Vengeance is Brandon Mayfield’s
Falsely accused of being a terrorist, the Oregon lawyer wanted something more from the government than a cash settlement. He’s fighting the Patriot Act — and so far, he’s winning.
PORTLAND, Ore. — “Someone must have slandered Joseph K,” begins Franz Kafka’s classic novel “The Trial,” “for one morning, without having done anything truly wrong, he was arrested.”
Last week America’s own Joseph K., the terrorist who was not a terrorist, got a little more revenge on the government that had persecuted him. Brandon Mayfield, falsely accused of involvement in the Madrid train bombings of 2004, has already collected a hefty cash settlement; on Sept. 26, a federal judge in Portland, Ore., ruled that the two Patriot Act provisions the government had used against him violate the Constitution. Though the ruling will be strongly challenged on appeal, its larger importance may be as another straw in a judicial wind blowing against the Bush administration’s contemptuous treatment of the Constitution and the courts.
These days, Mayfield lives much as he has for the past decade or so, practicing family law from a small solo office next to a strip mall on the southern edge of Portland. He is a slight man, 41 years old, who likes to take his lunch at a nearby Middle Eastern restaurant. In many ways, what’s most interesting about Mayfield is how utterly unexceptional he is. He was born in Kansas and got his law degree from Washburn University in Topeka. An Army veteran, he is married, with three children, and lives with his family in a nearby suburb with the homey name of Aloha.
Almost the only vaguely exotic thing about Brandon Mayfield is his religion: He is a Muslim convert and belongs to a local mosque. But like Alexis de Tocqueville, the 19th-century French writer whom he likes to quote and who helped define the American spirit, Mayfield worries that in a democratic system, the tendency of government will be to augment its power at the expense of minorities. “I’m suspicious of government anyway,” he said in an interview last week. And it’s not hard to conclude that Mayfield’s one deviation from the norm, the thing that makes him a minority, explains why, for a few weeks in 2004, he was one of the most famous people in the world.
On May 6, 2004, FBI agents descended on his law office, his home, and the family farm in Kansas to search for evidence that Mayfield was a terror mastermind. Media leaks let it be known that he was responsible for the Madrid train bombings of March 2004, which killed 191 people. The evidence was said to be a fingerprint found on a plastic bag of detonators at the scene. Federal agents threw Mayfield into the Portland city lockup not as a defendant but as a “material witness.”
But not only had Mayfield been far from Madrid at the time of the bombing, he hadn’t even left the United States since 1994. The FBI, however, insisted that his Army fingerprint matched a digital photo of the print from the Madrid bag. The Spanish police, who had the original fingerprint, were never convinced that Mayfield’s was a match. But that didn’t stop the FBI from swearing to a judge that it was.
The case collapsed when, after Mayfield had been held for two weeks, the Spanish police identified an Algerian, Ouhnane Daoud, as the real holder of the fingerprint. The feds released Mayfield.
Then the payback began. Gerry Spence, the Jeremiah Johnson of America law, ambled down from the Wyoming mountains to represent Mayfield in a civil-rights lawsuit against the government. The FBI apologized and gave him a $2 million settlement. Mayfield agreed to waive all his personal claims against the government and specific agents; but he insisted on retaining one claim: that two provisions of the Patriot Act were unconstitutional on their face.
In the weeks before his arrest, Mayfield’s wife, Mona, repeatedly came home to find the deadbolt locked on their house, even though no one in their family ever used it. Sometimes she would feel an eerie sense that someone was in the house. She would walk through their home calling the family cat, Mayfield recalls, “not because she wanted the cat to come, but because she wanted to let any intruders know she was coming.” In general, the entire family began to suspect that someone was going in and out when they were not at home. Mayfield, who had heard of federal investigations among the Muslims of Portland, suspected it was law enforcement. “If it was a burglar,” he recalls thinking, “why didn’t they take anything?”
And in fact, FBI agents, using a warrant issued under the Foreign Intelligence Surveillance Act, had begun to enter Mayfield’s home and office surreptitiously, photographing papers, downloading hard drives, and planting listening devices. This kind of warrant is known as a “sneak and peek,” and does not require any notice to the target of the surveillance.
When FISA was passed in 1978, the government could obtain “sneak and peek” warrants only when it certified to the secret FISA court that eavesdropping on foreign agents was “the purpose” of the surveillance. The Justice Department was careful to segregate this type of intelligence information from ordinary law-enforcement proceeds, which were gathered under the Fourth Amendment’s protections against “unreasonable” search and seizure. Under the Fourth Amendment, a law-enforcement warrant must be supported by “probable cause” — in essence, good reason to believe that the target has committed a crime.
The Patriot Act did away with this separation. Now foreign intelligence need only be “a significant purpose” of the surveillance — and the feds are free to share the information thus gathered with any part of law enforcement. This new tool gives the government a much broader power to investigate citizens without meaningful court review and use against them the evidence it acquires.
Those two provisions — the authorizations for secret searches and secret wiretaps against Americans — formed the subject of Mayfield’s remaining claim. And on Sept. 26, District Judge Ann Aiken held that both provisions violated the Fourth Amendment. In place of its specific guarantees, she wrote, “the people are expected to defer to the Executive Branch and its representation that it will authorize such surveillance only when appropriate.” She added that the government “is asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. This court declines to do so.”
In order to reach the Fourth Amendment issue, Aiken had to find that Mayfield and his family had what lawyers call “standing” to sue the government. In essence, that means that, despite the settlement, some live “case or controversy” still exists. Mayfield argues that the dispute continues because the government has the information it seized from his home and office, and there’s no guarantee that it won’t use that information against him or, as it apparently did during his 15 minutes of fame, selectively leak it to the media. And beyond that, Mayfield says, there were confidential legal files in the office. “What if I have clients who were subject to a FISA search?” he asks.
The judge found “standing” by reasoning that a decision in Mayfield’s favor would at least put the government on notice that it should not misuse the information.
That part of the ruling will surely be contested before the Ninth Circuit Court of Appeals. In addition, there is another case flatly disagreeing with Aiken’s — a mysterious decision titled In re Sealed Case, issued in 2002 by the highly secretive Foreign Intelligence Surveillance Court of Review (called “the FISCR”). This court meets at an undisclosed location, and only the government is a party to its cases. When the Foreign Intelligence Surveillance Court itself turns down a government request for a warrant, the government (but no one else) may appeal to the FISCR, and if it loses in the FISCR, the government (but no one else) may appeal to the U.S. Supreme Court.
Not long after the Patriot Act changed the “purpose” requirement, the FISC issued an order requiring the government to continue to segregate the information to prevent misuse by law enforcement, holding that those measures were needed to protect citizens against a violation of the Fourth Amendment. The FISCR reversed that decision, holding that “the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close” and that the amended act “is constitutional because the surveillances it authorizes are reasonable.”
But that was then, and this is now. Just as the tide of public opinion has turned against the Bush administration, so does the tide of judicial approval seem to be running against it. While Mayfield’s motion was pending, another federal court, in New York, held that the Patriot Act’s provision allowing investigators to obtain phone and other business records using “national security letters” is also unconstitutional. Even the Supreme Court of Chief Justice John Roberts has recently shown heightened concern about administration’s conduct of the war on terror. Last April, the court denied review of the law stripping courts of jurisdiction over Guantánamo detainee challenges. But two months later, in an all-but-unprecedented move, the court reversed itself and granted review — apparently because of an affidavit from a military lawyer stating that the detainees are receiving only a travesty of due process.
By repeatedly lying to the nation and to the courts, by extending government secrecy to new heights, and by pushing its constitutional and statutory authority to the furthest imaginable limits, the Bush administration has forfeited the trust of the courts. Judges of all political stripes simply no longer believe government assurances. Trust us, the government said, Mayfield’s the guy; he wasn’t. Trust us, we won’t abuse national security letters; they did. Trust us, we don’t torture; they do.
Harvard professor Jack Goldsmith, a conservative and a Bush appointee, is the man who withdrew the infamous “torture memos” that apparently authorized cruel and inhuman interrogation by soldiers and spies. In his recent book, “The Terror Presidency,” Goldsmith writes that Bush, unlike other strong wartime presidents, has repeatedly refused to consult with Congress, defer to the courts, or make any concession even to public opinion. “He has instead relied on the hard power of prerogative,” Goldsmith writes. “And he has seen his hard power diminished in many ways because he has failed to take the softer aspects of power seriously.”
This diminution suits Brandon Mayfield fine. Behind his desk are two framed posters, made at a local copy shop, of the Bill of Rights. Black-clad federal agents worked directly beneath them, he notes, as they ransacked his computers and his clients’ confidential files in a fool’s quest for a Spanish bomber.
Mayfield is now working on his own account of the events of 2004, and he spends other free time reading the history of the Constitution and the Bill of Rights. The Constitution guarantees every American the right to choose a religious belief, even if it’s one the government does not approve of. And it’s impossible not to believe that Mayfield’s spiritual choice is what landed him in prison, branded a mass murderer, on the basis of phony assertions and faked “evidence.”
Mayfield’s prescription for what ails the country is as straightforward as most other things about him. It’s the Constitution.
“We have a perfect balance between liberty and security, between criminal investigation and privacy. It’s called probable cause,” he said. “We ironed out these issues a long time ago. That’s why we’re such a wonderful country.”
- Garrett Epps is a professor of law at the University of Baltimore and a former reporter for the Washington Post. More: Garrett Epps