Act violates rights of the innocent

PORTLAND – A year after he was released from prison with an FBI apology, Brandon Mayfield recently learned some more things about his arrest as a terrorist.

At the same time, Congress – holding hearings on the reauthorization of the USA Patriot Act – learned a little more about the act and about what happens when Congress gives government vast new powers without stopping to think about it.

Ever since the arrest and awkward release of Mayfield on the mistaken grounds that his fingerprint was found on an item connected with the terrorist train bombing in Spain last March, the Justice Department has insisted that the Patriot Act had nothing to do with his arrest. That insistence continued through the opening of Attorney General Alberto Gonzales’ testimony to the Senate Judiciary Committee on Monday – and then ended a few hours into the testimony when Gonzales said that, well, yes, a couple of the Patriot Act powers had been involved.

Gonzales told the senators that the FBI had indeed used new powers of electronic surveillance, as well as another section of the act, in its investigation of the Oregon lawyer – based on a mishandled fingerprint and, implicitly, his identity as a Muslim convert. Agents collected quite a bit.

At the end of March, as part of his lawsuit against the federal government, Mayfield’s attorney received a statement: “Mr. Mayfield is hereby notified that the following property was seized, altered or reproduced during (Foreign Intelligence Surveillance Act) searches of his residence: three hard drives of three desk top computers and one loose hard drive were copied; several documents in the residence were digitally photographed; 10 DNA samples were taken and preserved on cotton swabs and six cigarette butts were seized for DNA analysis; and approximately 335 digital photographs were taken of the residence and the property therein. … Mr. Mayfield is also hereby notified that he was the target of electronic surveillance and other physical searches authorized pursuant to FISA.”

Nobody at this point thinks any of the material seized has any national security significance. Nobody now thinks the secret evidence behind the search meant anything.

People do know that anything collected can now be widely shared.

“There is no idea,” says Steven T. Wax, federal public defender in Oregon, “how many hundreds and hundreds of people, in intelligence offices around the world, now have access to private materials on Mr. Mayfield, his children and perhaps some of his clients.”

Plus his family’s DNA.

In fact, Mayfield can’t know exactly what’s out there.

“Worse still,” says Michigan Rep. John Conyers, ranking Democrat on the House Judiciary Committee, “the department still refuses to give Mayfield a full accounting of what searches were conducted, when they were conducted and what exactly was seized. When an innocent man can’t even find out the extent to which his rights have been violated, something is very, very wrong with our system of checks and balances.”

That fear, that something has gone off the rails, is why Gonzales was called to testify this week before the Senate and House Judiciary Committees, considering whether to reauthorize or amend the Patriot Act. It’s why a bipartisan group of senators, led by Larry Craig, R-Idaho, has reintroduced the Security and Freedom Ensured (SAFE) Act, which would limit the government’s powers to make secret searches without showing probable cause.

“I think we’ve got a chance to get some of it done,” says Sen. Russell Feingold, D-Wis., the only senator to vote against the Patriot Act in 2001 and now a SAFE Act co-sponsor. Feingold notes that now even Gonzales is open to some limits – although the administration also wants other changes to expand its powers even more.

The Mayfield case, says Feingold, “had a big effect on the whole attitude that anybody who criticized the law really wasn’t concerned about terrorism.” When Gonzales changed course and admitted a Patriot Act role in the case, “That was noticed at the hearing.”

Last week, we learned more about the Mayfield case.

And just how far the Patriot Act can go.