Oregon State Bar Bulletin — JULY 2004

What Price Security?
The war on terror comes home to Oregon
By Janine Robben

Brandon Mayfield was just another Oregon lawyer, with a solo practice so low-key that even some of the people who worked in the same office complex didn’t know who he was.

That was before he became internationally infamous — erroneously linked, by FBI fingerprint analysis — to the March 11 terrorist bombing in Spain that killed almost 200.

For most Oregon lawyers, the Mayfield debacle, which occurred in May, brought the war on terror home.

But to OSB President William Carter, the need for lawyers to be involved in the national debate over terrorism-related investigations and prosecutions was already clear.

"What should be the burden of proof?" Carter had asked rhetorically at a public forum on civil liberties and the USA Patriot Act, presented by the bar’s Civil Rights Section just three weeks before Mayfield’s arrest. "What should be the forum for trial? In my view, and the view of the Civil Rights Section, lawyers should be leaders in making sure public discourse (on these subjects) occurs."

But fulfilling that leadership role is not easy, even for lawyers.

That’s because the USA Patriot Act1 is 342 pages long, not including the text of the other federal laws that it amended. Overwhelmingly passed by Congress shortly after 9/11, it has since been criticized by both liberals and conservatives, making favorable commentaries few and far between.2 And partisan arguments — on both sides — don’t always stand up to scrutiny.3

Even lawyers with expertise on the subject have strongly divergent views about the use of the act and other legal means, such as the detention of material witnesses,4 to fight terrorism.

According to the USA Patriot Act’s chief author, Viet Dinh, its frequent portrayal as an expansion of government power is a "mischaracterization."

Speaking at the bar forum, Dinh said that the act was intended to create a "seamless web" of information-sharing between foreign intelligence and domestic law enforcement officers.

"It doesn’t matter how big your net is," said Dinh, who lived in Portland for two years after fleeing Vietnam as a child in the late ’70s, "if fish can get away through the holes."

But to Portland attorney John Ransom, Dinh’s "seamless web" is catching more than terrorists.

"The Patriot Act is a major incursion into the rights provided by the U.S. Constitution," says Ransom, who represented one of the defendants in the "Portland Seven" conspiracy case. "People seem to be unaware of how greatly our Constitutional rights are being eroded."

How have the USA Patriot Act and the detention of material witnesses affected the investigation and prosecution of terrorism-related cases in Oregon? The following questions and answers provide a summary:

Q: What investigatory tools — created, expanded or codified by the USA Patriot Act — are known to have been used in Oregon?

A: In summer 2002, federal intelligence agents entered the apartment of Ransom’s Portland Seven client, October Lewis, and her ex-husband, Jeffrey Battle. They planted a "bug" that recorded every activity within the apartment for the next two months.

The agents also intercepted and recorded conversations on the couple’s telephone line, as well as that of Portland Seven co-defendant Patrice Ford.

The authority for these intrusions came from orders issued by a judge pursuant to the Foreign Intelligence Surveillance Act of 1978, or "FISA," which was amended by the USA Patriot Act.

Under these amendments, federal intelligence agents may obtain orders authorizing investigative activities from a FISA court judge if foreign intelligence gathering is a "significant" purpose of their investigation. Previously, FISA orders were limited to investigations whose sole purpose was the collection of foreign intelligence.

According to the Portland Seven case’s lead prosecutor, this change didn’t influence the government’s ability to get FISA orders for Lewis’ and Battle’s apartment or their and Ford’s phone lines.

"My position is that the orders would have been issued under either standard," says Assistant United States Attorney Charles Gorder Jr.

From Gorder’s point of view, what was significant in the Portland Seven case was the USA Patriot Act’s "lowering of the wall" that previously kept foreign intelligence and domestic law enforcement officers from sharing information. According to Gorder, this helped to ensure that international terrorist crimes were not being committed while the Portland Seven’s unsuccessful conspiracy to fight against U.S. forces in Afghanistan was being investigated.

But in Ransom’s opinion, such information-sharing comes at a high cost. Among other things, the Fourth Amendment’s probable cause standard does not apply to searches authorized by the Washington, D.C.-based FISA court instead of a local federal court judge. And if a FISA search does not result in criminal charges, the target of the surveillance will never even be informed that it took place.

"Once that wall was removed," says Ransom, "it became very easy for criminal investigators to say, ‘We’re investigating a matter involving foreign intelligence,’ thus bypassing traditional warrants and the safeguards, such as probable cause, that go with them."

In 2003, the FISA court approved approximately 1,700 investigative orders, more that the number of wiretaps authorized by all state and federal courts combined during the same time period.5

In the Mayfield case, federal intelligence agents also may have used FISA court orders to surreptitiously enter the lawyer’s suburban Portland home and law office.

While the federal government has not confirmed such entries, or whether they were authorized under FISA and the USA Patriot Act, one of Mayfield’s attorneys says that entries "very definitely" occurred on at least two or three occasions.

According to Portland attorney Thomas Nelson, Mayfield and his family had noticed an inexplicable footprint on their home’s freshly vacuumed carpet, as well as changes to the position of window blinds and deadbolts, in the weeks prior to Mayfield’s arrest. Nelson says that Mayfield even called 911 after someone came to the door and knocked, then left when he realized that the house was occupied.

Nelson says that Mayfield also found a splice on a telephone line in his office.

"Frankly, it (such secret entries) create(s) paranoia," says Nelson. "But even paranoid people have enemies."

Mayfield was arrested on May 6. That same day, investigators used traditional warrants to search his home, vehicles and law office and to seize client files from his office. He was released on May 20, after the FBI fingerprint analysis that had "incontrovertibly" linked him to a fingerprint found in Madrid was discredited.

Portland attorney Kristen Winemiller, who represented Battle in the Portland Seven case, says that the fact Mayfield is a lawyer makes the use of secret searches in his case especially troublesome.

Mayfield — a Muslim convert who often represents Muslims on immigration and other issues — had represented Battle on child custody issues after Battle was arrested.

"It’s entirely plausible that they put an eavesdropping device in the Mayfields’ home," she says. "If they were willing to seize client files from his law office, were they also eavesdropping on privileged conversations at his law office? Now they don’t have to reveal that, because he wasn’t charged. (But) he should have every right to understand how deep the intrusions went, especially as a lawyer, if client confidences were violated. The clients themselves have an even greater right to that information."

Under the warrant authorizing the search of Mayfield’s law office, investigators were allowed to examine client files only for the purpose of determining whether they were covered by the warrant. The agents then were required to maintain any seized files in a secured or sealed condition until an assistant U.S. attorney, not connected with the case, could review them. According to Gorder, only non-privileged information was passed on to criminal investigators and prosecutors.

On May 24, U.S. District Court Judge Robert E. Jones ordered all property seized from Mayfield to be returned and copies of any property retained by the government destroyed.

"The files have been returned," says Gorder, "but not in an unread condition."

Q: How important was the USA Patriot Act to the Portland Seven and Mayfield cases?

A: In the Portland Seven case, that depends on whom you ask.

According to Ransom and Winemiller, the government’s case against their clients was built on evidence obtained from other sources.

That evidence included conversations with an undercover federal informant, as well as airline, hotel and other records indicating that Battle and his male co-defendants had attempted to reach Afghanistan to fight on the side of the Taliban after 9/11.

"In our opinion, there was absolutely no need for the Patriot Act (in that case)," says Ransom. "Normal investigatory procedures were more than adequate."

According to Winemiller, the investigative procedures authorized by the act also had a "significant negative impact" on the target families’ private lives, and its secrecy provisions resulted in the withholding of key information from defense lawyers.

But to Gorder, the ability of foreign intelligence agents to share information with local law enforcement was a "really important" factor in the successful prosecution of the case.

"We didn’t need information-sharing to arrest Battle," he explains. "But we did to arrest the others that we’d heard were involved. Battle was talking about casing local synagogues, so there was a lot of pressure to go out and arrest him. But with information-sharing, we were able to feel a little more comfortable that his talked-about attack on a synagogue or Jewish school wasn’t imminent.

"Without the act," he concludes, "it would have been the "Portland One" instead of the "Portland Seven."

In Mayfield’s case, the evidence was derived almost exclusively from a standard investigative technique, fingerprint analysis. According to the U.S. Attorney’s Office in Portland, Mayfield was not even on terrorism investigators’ radar screens until his fingerprints were identified as matching a plastic bag, found in Madrid, that contained detonators and remnants of explosives.

Q: What are the requirements for the detention of a material witness, and under what circumstances can such detention be kept secret?

A:A local federal court judge may order a person to be detained if there is probable cause to believe that a) his testimony is material to a criminal proceeding and b) that it may "become impracticable" to secure his presence by subpoena. The judge may order the arrest and detention to be kept secret if the person’s testimony is to be part of grand jury proceedings, which are inherently secret.

Historically, this statute has been used to compel grand jury testimony from uncooperative or reluctant witnesses who were not themselves targets of the grand jury’s investigation. But shortly after 9/11, U.S. Attorney General John Ashcroft announced that the "aggressive detention of material witnesses (was) vital to preventing, disrupting or delaying new attacks." The federal government has not released statistics on the number of people who have been held as material witnesses, and subsequently charged or released, as a result of that policy.

Q: In how many terrorism-related cases filed in Oregon has the federal material witness statute played a role?

A: Both Portland Seven co-defendant Maher "Mike" Hawash and Mayfield were ordered to be secretly detained as material grand jury witnesses.

Q: How secret were those arrests and detentions?

A: The two men’s cases played out in completely different ways.

Hawash’s arrest, which took place at the start of the Iraq conflict on March 20, 2003, was followed by more than a month of secrecy and uncertainty. During that time, his supporters organized protests, wrote their Congressmen and maintained a "Free Mike Hawash" website to attract national attention to his detention.

But Mayfield’s arrest and detention became international news as the result of government leaks.

"There’s no doubt in my mind that the leaks came from the central Justice Department in Washington, D.C., rather than someone local," says Winemiller. "Because I represent Battle, the media people to whom the leaks were made started their investigations by calling me. All of those initial calls came from people who were physically in Washington, D.C."

"They were saying that the fingerprint was an ‘absolutely incontrovertible match,’ a ‘bingo match,’ " says Nelson. "The publicity was very focused, very directed and very devastating."

Nelson disagrees with the federal government’s decision to arrest and detain Mayfield without first attempting to determine whether he would provide information voluntarily.

You have to ask yourself, ‘Is Brandon Mayfield a flight risk?’" asks Nelson. "He hadn’t been out of the country in 10 years. He didn’t have a valid passport."

According to a FBI agent’s affidavit, investigators admittedly had no evidence that Mayfield had traveled to Spain under his own name. But, the agent said, he believed that Mayfield had either used fictitious documents to travel under a false name or had "associated with someone" who was involved in the bombing.

To Gorder, such theories were valid, given the agent’s then-belief that the fingerprint found in Madrid was Mayfield’s. "The question is," Gorder asks, "‘How did his fingerprint get on a bag of detonators in Spain if he didn’t travel to Spain?"

Q: What is the USA Patriot Act’s future, and what do key players see as the defining issue in the debate over that future?

A: Some of the act’s provisions will sunset in October 2005 unless Congress takes specific action to carry them forward. Others have no such provision and will continue to remain in effect unless Congress takes specific action to repeal them.

"Nothing I’ve seen in the last 32 months leads me to believe that my vote against the Patriot Act was misguided," U.S. Representative Earl Blumenauer said at the bar’s forum in April. "I don’t trust this administration with these tools. I wouldn’t trust the Clinton administration. I wouldn’t trust what I hope will be the Kerry administration. The history of expanding the powers of government at the expense of our fundamental rights is a sorry one."

Dinh acknowledged the fears expressed by Blumenauer, which he called "unfounded" but nonetheless "genuine."

But he denied that civil rights have suffered as a result of legal changes made after 9/11.

"Does the balance of liberty, civil rights and security change when we are at war?" he mused, repeating a question raised by a member of the audience. "There shouldn’t be a balance. The end of government can’t be security. I think of it as providing security so we can achieve the proper end of government, which is liberty.

"Neither the Constitution nor common sense," he said, "prevents us from doing that which makes us more secure."

ABOUT THE AUTHOR
Janine Robben is a Portland writer and reporter. She has been a member of the Oregon State Bar since 1980.

Endnotes

1. The act’s full title is the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001."

2. As the Santa Clara County (Calif.) Library noted in its online literature summary (last updated in March 2004), "An attempt was made to present a balanced overview of the information available on the Internet regarding the USA Patriot Act. (But) except for a few government websites and periodical articles, the information has been overwhelmingly anti-Patriot Act."

3. According to "Slate," a Microsoft-sponsored, online magazine that focuses on politics and culture, "There have…been a raft of op-eds and articles — some evidently written by (U.S. Attorney General John) Ashcroft’s U.S. attorneys at knifepoint — simultaneously making the point that the act has staved off unspeakable acts of terror while maintaining that it made only tiny infinitesimal changes to the existing laws." "A Guide to the Patriot Act, Part 1," "Slate" magazine, posted at on Sept. 8, 2003.

4. "Release or detention of a material witness, Title 18, United States Code, Section 3144.

5. From the May 14, 2004 "Legal Times," an online source of legal information.

ABOUT THE AUTHORS
Jeff Bleich is a litigation partner at Munger, Tolles & Olson in San Francisco. He clerked at the U.S. Supreme Court for Chief Justice Rehnquist in the 1990 and has taught courses on federal constitutional law and habeas corpus at the University of California at Berkeley. Anne Voigts is a litigation associate at Munger, Tolles & Olson. She clerked at the U.S. Supreme Court for Justice Stevens in 2000 and is currently teaching a course in criminal procedure at the University of California at Berkeley. Both were part of the team representing Michael Haley before the United States Supreme Court.

© 2004 Jeff Bleich & Anne Voigts


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