The Rights of the People (30 page)

And this bad news was what we could see in the open sunlight. There were deep shadows, too.

S
OMEBODY HAD BEEN
in the house again. The top bolt was locked, something the Mayfields never bothered to do. A fairly new carpet, freshly vacuumed, was indented with footprints shaped like shoes, which the Muslim family didn’t wear inside. In the teenage son’s bedroom, the louvers of a blind overlooking the driveway were cracked open at a height above the boy’s eye level, as if a tall intruder had peered out to see whether anyone was coming.

Mona Mayfield called her husband at his law office. “Brandon, I’m at the house,” he remembered her saying. “The thing’s bolted; I didn’t leave it bolted.” He questioned her: Was she certain? She passed the phone to their son Shane, with instructions: “Tell your dad this is bolted.” He did, and Brandon Mayfield said, “OK, it’s not burglars.”

He had worried about burglars, even arsonists, since there had been some fires set in the neighborhood. More than once during that spring of 2004, the unused bolt above the main lock had been thrown. Digital clocks and VCR lights had been blinking, as if the power had been turned off and then on again. A creepy feeling had led him to call the police, who offered to send someone. But since nothing had been stolen except the family’s sense of security, he declined and waited to see if it happened again.

It did. Telltale signs of invasion appeared weekly, on a Tuesday or a Thursday. Computer hard drives in his law office crashed. As he walked and drove, he was chilled by the uneasy sensation of being watched and followed. Occasionally he noticed someone tailing him from his office. He began to look for unfamiliar vehicles parked on his street.

Then one day, Shane, age fifteen, stayed home sick alone after Mona and Brandon and the two youngest children had left in a van and a car. “It might have appeared to anybody doing surveillance that everybody had gone,” Brandon surmised. “They probably assumed that nobody was home that day, and it might have been pretty quiet.”

Shane slept late in his room above the garage, then got up and went to the kitchen to eat. Suddenly, through a window, he saw a man walking deliberately toward the house. He heard noises. “He was scared that it could be unsavory characters coming through the door,” Brandon said. There seemed to be more than one. “They didn’t knock. They immediately went for the door, they were messing around with the door. He was getting nervous. They were not knocking and announcing, they were trying to break in. He went upstairs to my daughter’s room, and he took it a step further and went inside the attic. He was hiding in a crawl space in the attic, just there, scared.” With his cell phone, Shane tried to call his parents but couldn’t reach them, so he phoned his aunt half a continent away in Kansas City.

Then, just as suddenly, Brandon reported, “Whoever it was must have realized he was there. We speculate they were monitoring calls. They left.” And they left behind a boy who “was pretty shaken up,” his father said.

The Mayfields were being subjected to secret searches, clumsily executed but clandestinely approved by an unnamed judge based on a confidential affidavit submitted by the FBI citing classified information—erroneous, it turned out—that Brandon Mayfield was an agent of a foreign power involved in terrorism. It was based on a fingerprint, from train bombings in Madrid, that the vaunted FBI laboratory had misidentified as his.

If all had gone as the FBI had planned, he would never have learned that his phones were being tapped; that his intimate and professional conversations at home and work were monitored with hidden microphones; that his private papers and his clients’ privileged files had been copied; and that he and his family were followed to work, to school, and to the mosque where they worshipped. He would not have known that agents copied three computer hard drives and one external drive, took ten DNA samples on cotton swabs, collected six cigarette butts to compare the DNA with that found in a van used by the terrorists, and took 335 digital photographs of his house and office.
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This occurred legally in the United States—in a suburb of Portland, Oregon.

• • •

The law authorizing such secret snooping, the Foreign Intelligence Surveillance Act (FISA),
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was passed in 1978 as a check on an FBI that had run rampant in the 1960s and 1970s by monitoring not only foreign spies but domestic antiwar and civil rights groups through its COINTEL program. When congressional hearings exposed the extent of abuse, in which J. Edgar Hoover’s agency had bugged and wiretapped Martin Luther King, Jr., and other American dissidents, the backlash took a creative turn. The most doctrinaire civil liberties advocates rejected any wiretapping as equivalent to a general search that violated the Fourth Amendment’s particularity requirement, because it collected all information passed on a particular phone line, not just that related to the crime under investigation. Pragmatic liberals, however, led by Senator Edward Kennedy, recognized that “if you opposed a statute saying you had to have a warrant, you’d be left with warrantless wiretapping,” recalled Jerry Berman, who was chief legislative counsel of the ACLU. Believing that the FBI had to be reined in but that clandestine methods were necessary to counterespionage, Congress then enacted FISA to regulate the surveillance by constructing a layer of judicial oversight far less demanding than for traditional criminal warrants.

The result, a parallel system of shadow warrants, functioned appropriately when limited to intelligence gathering in the dusky world of spies, where a Soviet agent would not be prosecuted but simply expelled from the country. “It was a remarkable experiment, saying we can legally regulate the way intelligence is gathered,” noted Stewart Baker, general counsel for the National Security Agency and later an assistant secretary of Homeland Security. “There was never a country that tried this.”

But the experiment began to fail during the Clinton and Bush administrations. Initially limited to electronic surveillance, the law was expanded in 1994 to permit physical searches,
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and has since spread beyond the bounds of intelligence into ordinary criminal investigations, disrupting the equilibrium calibrated so carefully by the Bill of Rights.

The differences between FISA orders and criminal search warrants are monumental. While the target of an ordinary warrant is notified of the search, at least eventually, the target of a FISA warrant has no such right to know.
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The police affidavit supporting an ordinary warrant is later made public so that it can be challenged, but the affidavit for a FISA warrant is not. Nor is the name of the judge who signs the FISA order, one
of eleven federal judges appointed to the Foreign Intelligence Surveillance Court by the chief justice of the Supreme Court to consider such applications in secret. The specifics of the FISA order may remain sealed, and therefore unchallengeable, even if they become the basis of an ordinary search or wiretap warrant under Title III of the U.S. Code. The law permits judges to keep the rationale for the FISA order secret from the defense in a suppression hearing unless they find disclosure essential, which they virtually never do.

If FISA material is used as evidence, it must be turned over to the defense, but before the defendant can see it, it must be declassified. If the government wants it to remain classified, the defense attorney and any translator have to get security clearances to pore through it, and the defendants themselves may never be allowed to know its contents.
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A heavier handicap is imposed if the material collected under FISA isn’t used in trial. Then, it never has to be revealed to the accused and their attorneys unless it contains exculpatory evidence—and the government is empowered to decide unilaterally what’s exculpatory. This burdens the fact-finding process. The e-mails, Web searches, conversations, and documents collected through FISA may have been used to focus and further the investigation, but the defense will probably never know of their existence. When a body of evidence is rendered invisible, there is no way to put statements in context, rebut assumptions, or contest fragmented facts that shape the government’s theory of the crime.

Secrecy invariably permits abuse, as documented by the Foreign Intelligence Surveillance Court’s disclosure that in 2000 “the government came forward to confess error in some 75 FISA applications related to major terrorist attacks directed against the United States. The errors related to misstatements and omissions of material facts,” the court said. As a result, “The Court decided not to accept inaccurate affidavits from FBI agents whether or not intentionally false. One FBI agent was barred from appearing before the Court as a FISA affiant.”
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But if the executive branch itself had not revealed these “errors” to the court, nobody would have known, because FISA permits no adversary proceeding.

In other ways, too, the looser standards depart from the Fourth Amendment’s language of protection. While an ordinary warrant is supposed to meet the requirement for particularity (“particularly describing the place to be searched, and the persons or things to be seized”), a FISA warrant does not have to specify the “things to be seized” and thereby becomes a fishing expedition. The requirement to name places or individuals in the FISA application was eliminated, by amendments in 2008, when a target
overseas is not a “United States person,” even where one end of the communication is inside the United States.
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Nor does there have to be a crime to justify the snooping. As outlined in the Justice Department’s report on the Mayfield case, “To obtain authority for FISA surveillance of a particular telephone line, the government must show probable cause to believe that the target is an agent of a foreign power and that the target uses that telephone line to communicate.
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In contrast, in a criminal case the government must show that there is probable cause to believe that an individual is committing, has committed, or is about to commit a particular criminal offense specified by statute, and that particular communications about that offense will be obtained through the interception.”
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In other words, while an ordinary search warrant demands that the police show probable cause to believe that criminal evidence will be found, a FISA warrant mandates probable cause only that a target is somehow in coordination with a foreign entity that can include a government or a terrorist organization.
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This lower threshold, reduced further by amendments to FISA following 9/11, has permitted wide-scale surveillance of people without substantial evidence of criminal behavior.

In addition, a criminal wiretap order requires agents to restrict interception to communications involving the alleged crime, whereas FISA practices allow constant monitoring and only later, when tapes are played and transcripts made, is the intercepted material narrowed by indexing and logging. These are called “minimization procedures,” designed to diminish intrusion into private lives, but they kick in only after the intrusion has occurred.

FISA also contains a more relaxed requirement for timeliness: To get a criminal wiretap order, for example, police have to show probable cause (known in the vernacular as “P.C.”) that a phone line has been used for a crime within the last forty-eight to seventy-two hours, and if they can’t do so, a judge will often tell them to “freshen up the P.C.” FISA surveillance invites more flexibility, according to Michael E. Rolince, who headed the FBI’s International Terrorism Operations Section on 9/11: “You can say, ‘The Soviets used this safe house on Bleecker Street three years ago; let’s see if it’s been reactivated.’ ” Rolince’s reading may take liberties with the law, which actually requires that “each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.”
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But nobody can get into a Foreign Intelligence Surveillance Court hearing to contest an FBI interpretation.

Because FISA warrants are secret and sweeping—authorizing bugging, wiretapping, and clandestine searches more typical of dictatorships than democracies—Congress initially required that “the purpose” be to gather foreign intelligence rather than criminal evidence for prosecution. Over the years, federal courts and the Justice Department translated this into “the primary purpose,” which prevented FISA from becoming a substitute for the ordinary criminal search warrant or wiretap order. The aim was to mandate that the secret FISA tool be used only where prosecution was incidental to intelligence gathering and thereby preclude law enforcement from evading the Fourth Amendment.

Furthermore, to guard against judges throwing out evidence, administrative walls were erected in the mid-1990s under Attorney General Janet Reno to prevent intelligence officers, whether in the FBI, the CIA, or other agencies, from sharing information with criminal investigators who were digging up evidence for trials.
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These barriers were designed to reinforce the limits on FISA by blocking criminal investigators from expropriating FISA as their tool of research—to prevent cops from relying on spies to do end runs around the Constitution’s stringent warrant requirements. But they also created what officials came to see as absurdities.

“In terrorism cases, this became so complex and convoluted that in some FBI field offices, FBI agents perceived walls where none actually existed,” said Rolince. “In fact, one New York supervisor commented that ‘so many walls had created a maze,’ which made it very difficult for the criminal investigators.”
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The confusion impeded information-sharing that might have instigated a search for one of the nineteen September 11 hijackers, Khalid al-Mihdhar. Among many communications failures in his case was a mistaken belief by CIA and FBI intelligence analysts that the wall barred them from conveying reports to agents who were doing a criminal investigation of his role in the USS
Cole
attack.
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Jealousy over jurisdictions may have played a role as well: When an FBI agent working in the CIA’s bin-Laden office learned that Mihdhar had a multiple-entry U.S. visa in his passport, his message to FBI headquarters was blocked by a senior CIA official.
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