"The Case of Brandon Mayfield" — Workshop #9
October 25, 2007
Brandon Mayfield, Guest Speaker
Notes on Conference Call
The Government’s Invasion of Brandon Mayfield’s Life and Privacy
Brandon talked about being falsely accused of taking part in the Madrid train bombing in 2004. The FBI erroneously linked a fingerprint found on a bag of detonators to Mayfield’s prints (taken while he served in the U.S. Army). The FBI pursued Mayfield, even though the Spanish police told the FBI that the prints did not match. The government contended its pursuit of Mayfield was based on the fingerprint, but according to Mayfield, “In the affidavit, the FBI said my wife was an Egyptian, I had represented Muslim clients, I had called Muslims in Ashland, I was listed in a Muslim phone directory and I’d been followed to a local mosque. I was targeted because I’m a Muslim.”
The FBI used the PATRIOT Act to secretly search his office and home. The Mayfield family thought they were being burglarized. They were being burglarized – by the U.S. government. “We had telltale evidence of their burglary. Unbolted doors bolted or partially opened. Newly vacuumed carpets when we don’t wear shoes in the house.” Mayfield was arrested as a “material witness” on May 6, 2004. He was released 2 weeks later, when Spanish police arrested an Algerian man whose fingerprints Spanish police said were a match. Had it not been for that man’s arrest, Mayfield believes he would still be in custody.
Yet, even after his innocence was apparent to all, Mayfield says, the FBI “…refused to tell us where they placed their listening devices and cameras, leaving us to wonder if they might still be listening to our most intimate actions and conversations.” The government made copies of personal papers, computer hard drives, and photos, and until the government retrieves and destroys all the copies it made and distributed, the Mayfield family’s privacy is still not guaranteed.
In 2006, the FBI settled Brandon’s lawsuit by paying him $2 million in damages. Brandon continued to challenge the PATRIOT Act’s constitutionality, and on September 28, 2007, federal judge Ann Aiken declared two provisions of the PATRIOT Act unconstitutional. The case continues on appeal. The following are some of the other major points Brandon made in his talk:
“We live in 1984”
Here's what the government tells us: Torture is morality, stripping rights is called the PATRIOT Act. “Operation Infinite Freedom” wages war on you. War is peace. Freedom is slavery. Ignorance is strength. We have to remind ourselves as horrendous as 9/11 was, it was a criminal act. Though the government had enough tools at the time, instead it whipped up fear in minds of American public to force through the PATRIOT Act and other laws that violate the Bill of Rights.
Probable cause must be reinserted into our justice system
Probable cause is a legal standard that ensures that the government will not search or arrest us without reasonable suspicion that a crime has been committed. The founders of the United States wrote probable cause into the Constitution in response to British soldiers breaking into people's homes. Probable cause has been consistently undermined by the use of the words “terror” and “national security.” Legislators sometimes forget words like liberty, justice, and probable cause.
The framers of the Constitution weren’t planning to include a Bill of Rights because their assumption was the government was limited in power. Because its powers were enumerated, it had no powers beyond those stated. Since then, government has become bureaucratic and over-regulating in name of security. We need historians and constitutional lawyers to help us reconstruct the debate and rein in federal powers.
Erosions of our liberties did not begin on September 11, 2001
1. The Foreign Intelligence Surveillance Act (FISA) of 1978, despite claims that it corrected the illegal warrantless wiretapping that had become especially rampant under the Nixon Administration, actually undermined the requirement of probable cause by allowing wiretapping of “foreign agents” with a FISA warrant when the “primary purpose” of a search is to collect foreign intelligence. “Foreign intelligence” can include matters of trade and commerce. It’s not restricted to espionage or terrorism.
-- Electronic Privacy Information Center on FISA: http://epic.org/privacy/terrorism/fisa/2. The Material Witness Statute of 1984 allows the government to detain any individual by a judge accepting an affidavit that the person is a flight risk, and/or that the government needs to insure the person will be present to testify in a criminal proceeding. Brandon Mayfield told us that since September 11, 2001, 70 people have been arrested as material witnesses, and all but one was a Muslim. By holding Mayfield under this statute, the government was able to hold him indefinitely without charging him with a crime -- a clear violation of the constitutional guarantee of probable cause. The Material Witness Statute is one that has been overused since the government’s “war on terror” began.
-- Material Witness Law Has Many in Limbo (Washington Post, 11/24/02)3. The Anti-terrorism and Effective Death Penalty Act of 1996 opened the door to warrantless wiretapping. Again, probable cause is absent – the government acts without proving to an outside arbiter that there is a reason for government intrusion into private lives.
4. The PATRIOT Act, passed in 2001, further eroded the probable cause requirement by allowing FISA warrants for searches, as long as the "significant purpose" was foreign intelligence – meaning there could be any number of other purposes for secret FISA warrants. http://www.epic.org/privacy/terrorism/hr3162.html
5. The Military Commissions Act, passed in 2006 stripped non-citizens and legal U.S. residents of the right of habeas corpus. http://bordc.org/threats/mca.php
Those who stand in the way of the U.S. war machine are being trampled under its wheels
Brandon listed several people who have been subjected to injustices in recent years. Chaplain James Yee, Lt. Ehren Watada, Lynne Stewart, Abdel-Ilah Elmardoudi, Karim Koubriti, Sami al-Hussayan, and Sami al-Arian. We’ve added some information and links about each one, available by clicking here.
National Security Letters were used in Mayfield’s case
According to the March 2006 Department of Justice Inspector General’s report, the government used National Security Letters (NSLs) to spy on and build a case against Mayfield. Mayfield elaborated on this point: Prior to his arrest, Mayfield had frequented the Washington County Law Library for legal research. After he was released, library staff indicated to him that government officials had visited them. Mayfield suspects the FBI issued NSLs to these librarians, but the gag orders that come with NSLs impede any definitive conclusion, oversight or accountability. Just recently, a judge in the southern district of New York invalidated a provision governing NSLs that prohibited recipients from speaking about their existence.
- BORDC video “FBI Unbound: How National Security Letters Violate Our Privacy” http://fbiunbound.org
Current Opportunities for Change
Adopt one Bill of Rights Amendment
Brandon suggested that as a way to raise awareness about the Bill of Rights as a whole, people could organize state by state to “adopt” one of the ten articles in the Bill of Rights. This could also draw attention to some of the less-discussed components of the Bill of Rights. For example, the Ninth Amendment guarantees that the people retain rights not limited to the Bill of Rights. The tenth amendment reserves powers not otherwise delegated by the Constitution the people or to the states.
Adopt a Guantánamo detainee
By learning about and spreading the personal stories of people detained at Guantánamo, we can help generate the public outcry needed to win the right to a hearing before an impartial judge (habeas corpus) and a fair trial for each person imprisoned there. Any group or coalition can “adopt” a prisoner, and ask Congress to take a look at the case.
Brandon Mayfield is closely following the case of Adel Hamad, prisoner
# 940, a hospital charity worker, now at Guantánamo. Hamad
is represented by attorney, Steven Wax, who also represented Mayfield
after his arrest.
Brandon says that Hamad has been promised release many times, but
the officials have reneged each time.
Here’s a video of one of Hamad’s attorneys, William Teesdale,
from the Portland public defender’s office, reporting from Guantánamo
Bay: http://youtube.com/watch?v=D5E3w7ME6Fs
And a website: Adel Hamad: Waiting
for Justice
What You Can Do
* Raise public awareness about human rights abuse in your hometown,
county or state.
* Stretch your alliances to include groups and people from targeted
communities.
* Find out if
there is a detention center near you.
* Learn from other
local activists how to befriend those who’ve been targeted,
and how to work to shut down a detention center in your community.
* Demand Congress Restore Constitutional Rights
* Despite his own legal victory, Brandon knows that few of us have
clear proof that we’ve been harmed by governmental policies
that affect our Bill of Rights protections. In short, we lack “standing”
to bring cases to court. But each of us can apply pressure our elected
representatives, when we organize locally to build the coalitions
that show our legislators that we have community power. Even though
representatives are being pressured by the administration and by telecommunications
companies, asking for immunity from their law-breaking, we must continue
to assert that that the Bill of Rights should not be left to collect
dust! We must demand that Congress be held accountable for upholding
the basic principles of privacy, due process, and probable cause that
the Constitution promises.
o To help with our communications to members of Congress, Brandon Mayfield shared three letters he has written that we can use as models.
+ Letter to Congress on case of Adel Hamad http://www.bordc.org/resources/hamadletter.pdf
+ Letter to Congress on Warrantless Wiretapping http://www.bordc.org/resources/wiretappingletter.pdf
+ Letter to Rush Holt in support of his bill, H.R. 3782, which would maintain FISA as the exclusive means for wiretapping in the U.S., and re-establish FISA standards to protect U.S. residents from government surveillance without a warrant. http://www.bordc.org/resources/lettertorepholt.pdfo Learn more about pending legislation: http://bordc.org/threats/legislation
o Contact House Speaker Nancy Pelosi through her aide Mike Sheehy, and remind her of the words of the Fourth Amendment, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
o So-called “blanket warrants,” which pre-approve programs rather than require warrants for specific circumstances, do not comply with the Fourth Amendment. You don’t have to live in California to call! Nancy Pelosi’s Washington, D.C. office (202) 225-4965 Fax: (202) 225-8259
o The American Freedom Agenda Act of 2007, introduced by Rep. Ron Paul (R-TX) promises to restore the Constitution's checks and balances and protections against government abuses as envisioned by the Founding Fathers For more information on this bill: http://www.huffingtonpost.com/naomiwolf/finally-action-ron-pau_b_69042.html
* The FISA law that began eroding the Bill of Rights in 1978 has become the barest of protections from government surveillance since the Protect America Act passed in August. There are few bills before Congress that will truly bring Bill of Rights restorations. The RESTORE Act, (H.R. 3773) before the House, does not require individualized warrants for wiretapping. The Senate’s warrantless wiretapping “fix” (S. 2248) gives immunity to telecommunications companies that colluded with the government to provide Americans’ personal information without a warrant.
* Another Idea for Action
A caller mentioned the possibility of impeaching members of Congress
as a solution to the inaction they've been taking to restore the Bill
of Rights. Brandon pointed out that since representatives are elected
every two years, it's probably easiser to vote them out of office.
It is true that any high official can be impeached, if they are guilty
of impeachable offenses, which are described in Article II, Section
4 of the Constitution, which defines executive powers. It states “the
President, Vice President and all civil officers of the United States
shall be removed from office on impeachment for, and on conviction
of, treason, bribery, or other high crimes and misdemeanors.”
(source: http://encarta.msn.com/encyclopedia_761577202/Impeachment.html)
Wrap-Up
Early in the conversation, Brandon Mayfield asked what happened to the Patrick Henrys and the Thomas Paines – individuals who actively resisted infringements on their freedoms. In a 2002 Village Voice article, Nat Hentoff called the Bill of Rights Defense Committee’s resolution movement, “Sons and Daughters of Liberty.” Each day with our local actions and alliances, we have yet one more opportunity to stand in the spirit of Patrick Henry and Thomas Paine to reclaim the Bill of Rights. Thank you for all that you do!
For the Bill of Rights Defense Committee
Nancy Talanian, Executive Director
Hope Marston, West Region Organizer
Ben Grosscup, East Region Organizer
Michael Berg, Field Organizer (SC, GA, FL)