Wednesday, April 20, 2005

Patriot Act not at fault in Mayfield case

Commentary by David Reinhard


David Reinhard

The Patriot Act has been blamed for so many things it had absolutely nothing to do with—post-9/11 detentions, evil looks, unkind words—so it's no surprise that the law is blamed in cases where the anti-terror act's provisions were tangentially used.

Once again, however, the law's critics are not letting the facts get in their way in trying to pin the Brandon Mayfield case on the Patriot Act.

Yes, the act's search provisions were used in the investigation leading to his arrest in the Madrid bombing case. Yes, the Portland lawyer was later released and cleared of wrongdoing. But the secret search of Mayfield's home under the Patriot Act wasn't the cause of his arrest or release. Everyone knows the sole cause of Mayfield's brush with federal agents was a fingerprint that the FBI thought was his—a fingerprint an independent analyst hired by Mayfield's lawyer also concluded was his after his arrest. When the FBI concluded the fingerprint wasn't his, Mayfield was released with an apology.

Any excuse seems to suffice for most Patriot Act critics, but their propagandizing is getting in the way of their reasoning here. The misidentified fingerprint—not the search the fingerprint set in motion—led to Mayfield's arrest. Patriot Act critics who are glomming onto his case are engaged in a kind of guilt by association: The Patriot Act was used in the case. The case collapsed. Therefore, the Patriot Act should go. Never mind that an erroneous fingerprint was the only problem here.

There was no misuse, much less abuse, of the Patriot Act in this case. On the contrary, the act was used just as Congress intended, and the Constitution allows, in fighting terrorism and garden-variety crime.

Consider what investigators faced early in the Mayfield case. Terrorists had killed 191 people in the Madrid train bombing, and Mayfield's fingerprint was identified on a bag of bomb detonators in Spain. That's what's known. What wasn't known is that the FBI would ultimately determine that the fingerprint was not Mayfield's. So what were investigators supposed to do?

Exactly what they did. Go to a court with probable cause and ask a judge for authority to search a suspect's property for foreign intelligence. Don't tell the suspected terrorist you're on to him.

What would Patriot Act critics do in the same situation? Decide not to search a suspect's home or office? Blow their investigation by letting the suspect know his property's been searched? Leave a calling card behind?

In fact, the feds didn't need the Patriot Act to do exactly what they did in the Mayfield search. They've had the authority to do court-approved no-notice searches to gather foreign intelligence since President Clinton signed the 1995 intel bill into law. Yes, officials used the Patriot Act in this case, but only tangentially and not in the way critics think.

The Patriot Act eased the standard for no-notice searches in intelligence cases. Previously, officials had to certify that the purpose of a search was to gather foreign intelligence. The Patriot Act said foreign intelligence gathering was as a significant purpose of these Section 218 searches. It also lengthened the time in which these searches could occur. The Mayfield search was done under the looser Patriot standards, but the search would have been done under the pre-Patriot standards in the Foreign Intelligence Surveillance Act or FISA.

You hear a lot about the Patriot Act's "sneak-and-peek" provision, and critics would like to drag that into the Mayfield case. But the Mayfield search wasn't done under "sneak-and-peek" or the "delayed notification" section, which simply codified the delayed-notification rulings of various appeals courts.

Not that there would have been anything wrong with using delayed-notification provisions in this case. After all, they're used widely in drug, mob and other probes, and the courts have long held them to be constitutional in certain circumstances. Subjects in these cases eventually receive notice of the court-approved search. The difference in terror cases is that subjects receive notification only if evidence from the search is used against them in a prosecution—not unreasonable because notification might imperil an ongoing terror investigation.

The bid to pin Mayfield's troubles on the Patriot Act does have something in common with the Mayfield investigation itself. The case is closed.

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