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CAIR REPORT - May 11, 2005
The status of Muslim civil rights in the United States – 2005
The case of Brandon Mayfield
On March 11, 2004, ten bombs exploded on four commuter trains in Madrid, Spain. The death toll exceeded 190 people and at least 1,800 people were injured.(89) A partial fingerprint found on a bag containing detonators was matched by FBI analysts and the Justice Department proclaimed the match to be a “100% identification”(90) of American lawyer Brandon Mayfield;(91) who was subsequently arrested and jailed as a ‘material witness’ in the 3/11 Madrid bombings.(92)
Two weeks later, as Mayfield languished in prison, Spanish federal authorities confirmed their previous suspicions that the fingerprint did not belong to Mayfield. After two weeks in jail and hundreds of media stories labeling him a ‘terrorist’, he was finally released with a rare official apology from the FBI; who claimed that errors in fingerprint analysis were the sole cause for the catastrophic mistake.(93)
Said Mayfield about his arrest; “I am a Muslim, an American, and an ex-officer of the U.S. military. I believe I was singled out and discriminated against…[for being] a Muslim.”(94)
Background
Brandon Mayfield is a 37-year old licensed attorney who resides with his wife Mona and three children in a suburb of Portland, Oregon. After graduating from high school, he joined active duty in the Army and also spent time serving in the Reserves.(95) After an honorable discharge, he served in the ROTC and was commissioned as a Second Lieutenant. Mayfield returned to active duty service as an Air Defense Artillery Officer and was later honorably discharged due to a shoulder injury.(96)
After completing law school and passing the Oregon State Bar Examination, Mayfield began to work as a family law attorney in Oregon.(97) Mr. Mayfield embraced Islam in the late 1980s after he had married his wife Mona Mayfield, an Egyptian-American. He was a regular attendee of Friday prayers at a mosque in the Portland suburb of Beaverton, Oregon.(98)
The ‘Fingerprint’
According to the affidavit issued by FBI Special Agent Richard K. Werder requesting Mayfield’s arrest, the Spanish National Police sent the FBI digital photographic images of fingerprints found during the investigation of the Madrid bombings. Latent Finger Print #17, found on a plastic bag containing detonators believed to be used in the Madrid bombings, was run through the Automated Fingerprint Identification System (AFIS). (99)
Brandon Mayfield was one of more than 12 people who emerged as a ‘potential match’ for the fingerprint.(100) After being identified at fifteen points and after a “confirming” second opinion, fingerprint analysis experts determined that LFP #17 was “a 100% identification”(101) of Brandon Mayfield. Two senior law enforcement officials told the Associated Press that Mayfield and his home had been under FBI surveillance for several weeks prior to his arrest, due mainly to the fingerprint analysis.(102)
Agent Werder's affidavit also states that surveillance agents observed Mayfield drive to his regular mosque on several occasions beginning on March 21, 2004. This did not go unnoticed by the Mayfield family, who felt that their house had been searched. Upon seeing the surveillance agents, neighbors of the Mayfield’s also questioned the surveillance officers about why they were there.(103)
One would hope that before arresting an American citizen for links to an international terrorist attack, the FBI would have investigated all leads and fully verified the fingerprint before rushing to judgment. However, despite the fact that Spanish law enforcement and investigative officials continued to remain doubtful about the print “match” to Mayfield, the lawyer was arrested anyway.
On March 20, 2004, the FBI analyzed the partial fingerprint sent from Spain and concluded that it did indeed belong to Brandon Mayfield.
Notwithstanding the fact that a Scotland Yard fingerprint expert found any claim of a fingerprint match "horrendous,"(104) part of the evidence used to detain Mayfield for two weeks were "miscellaneous Spanish documents" that the FBI found in his home. The absurdity of the Justice Department’s case was revealed when the New York Times reported that these "documents" were later identified as nothing more than his children's Spanish homework(105). Unfortunately, since the story had already leaked to the media and many major news outlets were carrying the breaking story of the “American connection”(106) to the Madrid bombings; the damage to Mr. Mayfield and the American Muslim community had already been done.
However, less than a month later, Spanish forensic experts officially informed the FBI of their doubts and the two groups met in Madrid on April 21, 2004. The affidavit of Mr. Werder cites the same meeting as such: "Before the meeting SNP [Spanish National Police] personnel indicated that their examination of LFP#17 was preliminary and that a final determination had not been rendered. The SNP also indicated that they had not gone into the level three characteristics […] utilized by the FBI when making their initial comparison. At the conclusion of the meeting it was believed that the SNP felt satisfied with the FBI Laboratory's identification of LFP#17..."
Spanish forensic experts and officials on the case had quite a different take on the same exact meeting. It seems that the Spanish officials had little success in convincing the FBI of its mistake and commented on the FBI's unwillingness to accept their mistake. Said one Spanish police official, "The Spanish officers told [FBI representatives] with all the affection in the world that it wasn't [Brandon Mayfield]…We never wanted to simply come out and say the FBI made a mistake. We tried to be diplomatic, not to make them look bad..."(107)
The head of the SNP fingerprint unit, Pedro Lledo, noted that in the Mayfield case, the FBI "had a justification for everything…But I just couldn’t see it."(108) A commissioner of the SNP's science division, Carlos Corrales said, "It seemed as though they had something against him and they wanted to involve us."(109)
The Werder affidavit goes on to also highlight the fact that Mr. Mayfield has no record of international travel or border crossing.(110) In fact, Mr. Mayfield's passport had been expired for almost a year and he had never filed for its renewal. Although some federal officials claimed that Brandon Mayfield may have traveled under a false or fictitious name, Agent Werder concedes in his affidavit that no known aliases for Brandon Mayfield could ever be found by the FBI(111). Acting on information provided by the US Attorney's Office, Agent Werder notes that, "a Federal Grand Jury in the District of Oregon is investigating possible violations" of various bombing, terrorism, and conspiracy charges.(112)
In his affidavit, Agent Werder requested Brandon Mayfield's arrest because "…based upon the likelihood of false travel documents in existence, and the serious nature of the potential charges, Mayfield may attempt to flee the country if served with a subpoena to appear before the federal grand jury."(113) This claim was made notwithstanding the fact that Agent Werder himself admitted that Mayfield had never used any aliases nor had ever left the United States. Nonetheless, Werder asked for Mayfield’s arrest and went even further by requesting that the Court issue a seal on the affidavit, thereby making unavailable to the public any of the “evidence” linking Mayfield to the Madrid terrorist attacks.
FBI ‘Apologizes’ to Mayfield
On May 24, 2004, after noisy public outrage and scathing criticism from dozens of newspaper editorial boards, the FBI finally issued an official “apology” to Mr. Mayfield after his harrowing ordeal and complete exoneration.
In its one-page press release, the FBI blamed their monumental error simply on the “substandard image quality”(114) of the fingerprints involved in identifying Mr. Mayfield. The vast majority of the FBI’s “apology” press release deals with the technical and scientific fingerprint analyses. Only in the last line does it state, “The FBI apologizes to Mr. Mayfield and his family for the hardships that this matter has caused.”(115)
The New York Times, like most Americans, believe that this “apology” was insufficient. The editorial board proclaimed that "The Justice Department and the Federal Bureau of Investigation ought to hang their heads in shame…"(116)
Mr. Mayfield summed up his ordeal in a written statement saying that, “The government’s handling of this case has been prejudicial and discriminatory in the extreme. Upon initially being arrested, I was informed by the arresting officers that the media was close behind. Within minutes of my arrest the allegations of my involvement in the Madrid bombing were being disseminated through the media. Notwithstanding the judge’s gag order, the government put out its theory and its facts while we were prevented from saying anything.”
“The whole thing was unbelievable,” said William Mayfield, Brandon’s father. “It was a witch hunt.”(117)
The Washington Post said that “an apology is not enough”(118) and roundly criticized the Justice Department for their treatment of Mr. Mayfield and their abusive use of the Material Witness Statute.(119)
Justice Department Misuse of the ‘Material Witness Statute’
Many critics of the Justice Department’s tactics and procedures in the Mayfield case repeatedly pointed to the FBI's continuing abuse of the Material Witness Statute(120), which allows the government to arrest and hold witnesses who have information essential to a case but are considered a ‘flight risk’(121).
These ‘material witnesses’, many of whom are never charged or convicted of any crime, can be held secretly and indefinitely, without any access to counsel. This is the unfortunate method that has been used to detain many ‘terrorism’ suspects for long periods of time without any knowledge of the charges against them or any access to their lawyers. As in Mr. Mayfield’s case, the media often paints these people as ‘terrorists’ based solely on government leaks and not on the evidence.
Meanwhile, the government conveniently seals all the evidence in these cases. As in the case of Mr. Mayfield and so many others, it seems that American Muslims are automatically presumed guilty in the court of public opinion before they ever set foot in an actual court of law.
Traditionally, in order to obtain a material witness warrant, a prosecutor is usually required to prove that a witness is likely to flee when summoned to court.(122) Mr. Mayfield is a respected attorney and as such, he is an officer of the court sworn to uphold the law. No evidence was ever presented that an officer of the court would not respond to a subpoena or ‘flee’ had he been served with one. More importantly, there was virtually no ‘flight risk’ involved because Mr. Mayfield’s passport had expired and even the FBI admitted that he had never left the country before.(123)
Many critics have spoken out against the Justice Department’s use of the Material Witness Statute to round up Muslims who have not been charged with any criminal act. The former second-in-command in the Clinton Administration's Justice Department said that former Attorney General John Ashcroft was converting the Material Witness Statute into a preventive detention policy without congressional approval.
"After all, if they can pick people up like this, anyone can be picked up like this," said Michael Greenberger, now a University of Maryland law professor. "I am fearful that this is a long line of dramatic detentions, and we will find as time goes on that the evidence just peels away,"(124) Greenberger said.
The Material Witness Statute was issued a severe legal blow on May 1, 2004, when a federal judge called the imprisonment of material witnesses in the government's terrorism probe “unconstitutional.”(125)
U.S. District Judge Shira Scheindlin wrote that "imprisoning a material witness for a grand jury investigation raises a serious constitutional question under the Fourth Amendment," which prohibits unreasonable searches and seizures.(126)
She added that, "Since 1789, no Congress has granted the government the authority to imprison an innocent person in order to guarantee that he will testify before a grand jury conducting a criminal investigation."(127)
Brandon Mayfield Fights Back
On August 26, 2004, Brandon Mayfield hired one of the nation's most successful and colorful attorneys to represent him in a civil lawsuit against the Department of Justice.(128)
Celebrity lawyer Gerry Spence says he decided to help Brandon Mayfield sue the government because “it’s an important case to Mr. Mayfield, and it’s an important case to all Americans.”(129)
In his suit, Mayfield claims the federal government targeted him solely because of his Muslim faith and violated his Fourth Amendment rights by searching his home and office, seizing his family's belongings and incarcerating him for two weeks.(130)
“It’s called the Muslim factor,” Spence said. “It’s profiling. It even affects what you see on a fingerprint, which is supposed to be science.” After such a catastrophic blunder by the Justice Department and the FBI, the case of Brandon Mayfield serves to remind all Americans about our nation’s legal hallmarks of due process, evidential analysis and every person’s right to be presumed innocent until proven guilty in a court of law.
Kent Mayfield, Brandon's brother, accurately summed up the frustrations of many Americans when he said that Mayfield's only crime was that "… he is of the Muslim faith and … not super happy with the Bush administration. So if that's a crime, well, you can burn half of us."(131)
89 "Timeline: Madrid Investigation." British Broadcasting Corporation (BBC), August 11 2004.
90 Affidavit of Special Agent Richard K. Werder, FBI. May 6, 2004. United States District Court for District of Oregon
at 3.
91 "Statement on Brandon Mayfield Case." U.S. Department of Justice, May 24 2004.
92 "Family: Oregon lawyer has no connection to Madrid attacks." USA Today, May 8 2004.
93 Supra note 90.
94 Kevin Johnson, "Bomb case against U.S. lawyer dropped." USA Today, May 24 2004.
95 Supra note 90.
96 Ibid.
97 Ben Jacklet and Todd Murphey. "Now Free, Attorney Brandon Mayfield Turns Furious." Washington Report on Middle
East Affairs July/August 2004.
98 Daniel Wools, "Fingerprint Evidence Cited." Topeka Capital-Journal, May 8 2004.
99 Supra note 90 at 7.
100 Robyn Blumner, "All the fear that's fit to print." St. Petersburg Times June 6 2004. According to the affidavit by Special
Agent Werder, the prints were on file from his service as an army officer and because of an arrest for burglary in 1984.
101 Supra note 94.
102 Supra note 98.
103 Supra note 94.
104 David Sarasohn “In Mayfield case, fingers are pointing” The Oregonian, June 9 2004 available at
http://www.oregonlive.com/news/oregonian/david_sarasohn/index.ssf?/base/editorial/1086782164233840.xml
105 See id.
106 Michael Isikoff, “An American conncetion?” Newsweek, May 7 2004 available at http://msnbc.msn.com/id/4918333/
107 Christopher Brauchli, “Third time is not the charm for FBI,” The Boulder Daily Camera, June 12, 2004 available at
http://www.dailycamera.com/bdc/opinion_columnists/article/0,1713,BDC_2490_2957088,00.html
108 Id.
109 Id.
110 Supra note 60.
111 Id.
112 Supra note 98 at 7.
113 Id at 8.
114 “Statement on Brandon Mayfield Case,” FBI National Press Office, May 24 2004 available at www.katu.com/printstory.asp?ID=67592
115 Id.
116 Editorial, “The FBI messes up,” The New York Times, May 26, 2004 at A22.
117 Kevin Johnson, “Bomb case against U.S. lawyer dismissed,” USA Today, May 24, 2004
118 “Apology is not enough” Washington Post, May 27 2004 at A30 available at http://www.washingtonpost.com/wp-
dyn/articles/A59014-2004May26.html
119 Id.
120 18 U.S.C. 3144
121 See Id. The text of the Material Witness Statute says that a person may be arrested and detained as a “material witness”
only “…if it is shown that it may become impracticable to secure the presence of the person by subpoena.”
122 See Brett Zongker “Secret legal process misused, American-Islamic group says,” Associated Press, August 30 2004.
123 See note 67.
124 Supra note 78.
125 Larry Neumeister, “Judge declares imprisonment of material witnesses unconstitutional,” Associated Press, May 1 2004
126 Id.
127 Id.
128 Rukmini Callimachi, “’Smoking Gun’ author to represent Brandon Mayfield,” Associated Press, August 26 2004 available
at http://www.katu.com/news/story.asp?ID=70524
129 Ben Jacklet, “Mayfield calls in heavy hitter,” Portland Tribune, September 28 2004 available at
http://www.portlandtribune.com/archview.cgi?id=26394
130 “Judge quits wrongly accused lawyer’s suit” Associated Press, November 9 2004.
131 See Arsalan Iftikhar “Worst since J. Edgar Hoover Era” South Florida Sun-Sentinel, November 16 2004 available at
http://www.sun-sentinel.com/news/opinion/sfl-16forum16nov16,0,7656349.story?coll=sfla-news-opinion
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