The Justice Department is acknowledging for the first time that the FBI used a secret search warrant to copy and seize material -- including DNA samples -- from the home of Brandon Mayfield, a Portland, Ore., man who was wrongly arrested and jailed last year in connection with the March 2004 train bombings in Madrid.
In statements and testimony this week, Attorney General Alberto R. Gonzales and other Justice officials have also said that some of the special powers used to spy on Mayfield were strengthened by the USA Patriot Act, the anti-terrorism law facing fresh scrutiny from Congress. ...
Mayfield, a convert to Islam, was arrested May 6 after the FBI concluded that his fingerprint was on a bag of detonators connected to the bombings two months earlier in Madrid, which killed nearly 200 people. He was freed two weeks later, after the FBI admitted it had bungled the fingerprint analysis. Mayfield is suing the federal government.
The Justice Department previously declined to confirm Mayfield's contention that his house had been ransacked in a covert search.
But in a March 24 letter to Mayfield, sent as part of the ongoing lawsuit, the department acknowledged that during clandestine searches of his home the FBI made copies of computer drives and documents, and that "ten DNA samples were taken and preserved on cotton swabs and six cigarette butts were seized for DNA analysis." Authorities took approximately 355 digital photographs.
Finally, the letter said, "Mr. Mayfield is also hereby notified that he was the target of electronic surveillance and other physical searches authorized pursuant to FISA" -- the Foreign Intelligence Surveillance Act, which governs such warrants and was expanded under the Patriot law.
This is an unusual case because we know about it. We will never know of most searches under the USA PATRIOT Act, because they're secret in perpetuity. PATRIOT search orders are accompanied by a lifetime global gag order. If you receive a PATRIOT search order you may not tell anyone ever that you have even received it or you go to jail. Such orders do not require a showing of probable cause.
I don't think I need to editorialize on how bad an idea it is to let the government search you and seize your records, your files, and your DNA without showing probable cause and without allowing you the opportunity to protest.
The title of this post refers to Orin Kerr, a regular contributor to The Volokh Conspiracy, who has repeatedly challenged people to come up with one - even one! - instance of PATRIOT being abused. Given the gag orders, of course, Kerr's challenge is extreme hackery. Par for the Volokh course. But now we have at least one case, and I expect Kerr to begin spinning it as fast as possible: "It's only one case! And it's not an abuse of the Constitution! You must love terrorists!"
Yadda yadda.
Good post.
Posted by: bitchphd | April 07, 2005 at 09:14 PM