The Rights of the People (32 page)

His report should have punctured the myth. The lab was infused with “a pro-prosecution bias, which is intangible,” he told me. “It’s not anything you find on paper. It’s not in documents; it’s almost in the air, so it was more a sense of things, when you talked to people and reviewed everything with a large lens.” He noted “an absence of a true scientific culture in the lab. These were agents, self-taught with inadequate training, with totally inadequate scientific peer review.”

Into that culture came the fingerprints from the plastic bag in Madrid. The high-priority case brought a unit chief, Michael Wieners, into the lab on a Saturday, and he summoned one of his most experienced supervisors, Terry Green. They quickly realized that the prints’ resolution was inadequate, so they requested better images from Spain. When they received them on Sunday, they got down to work.
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Since 1999, the FBI has used a computerized tool known as the Integrated Automated Fingerprint Identification System (IAFIS), which compares a crime-scene print against those of 47 million people held in digital files and then spits out ten to twenty possibilities. But it takes a specialist to use the system, because it’s not as simple as just feeding in a print and getting a match. First, a real human being like Green has to “encode” the print on a screen by electronically marking some, but not all, of the points at which ridges either end or split into bifurcations; he also draws lines to show the directions of ridges. Like every computer system, this one is governed by the doctrine “garbage in, garbage out.”

IAFIS does not do well where the number of ridges between marked points is uncertain, so to help it along, examiners tend to label only points in the clearest area of the print, where the ridges can be counted precisely. They also avoid flagging points in clusters that are separated by gaps, a pattern that seems to baffle the system. Green’s later analysis
confused ridge endings and bifurcations, although on balance his initial encoding seemed “competent,” according to an investigation by the Justice Department’s current inspector general, Glenn A. Fine.

The computer won’t find you unless you’re in one of three databases of digitalized prints: a Special Latent Cognizant File of suspected terrorists, a Civil File of people fingerprinted for immigration purposes and for military and other occupations, and a Criminal Master File of anyone who has been arrested. Green searched all three databases, and the IAFIS nominated twenty candidates as possible matches to Latent Fingerprint 17. One of them, to which the computer gave a high score, belonged to Brandon Mayfield, who would have been spared all the ensuing misery if not for a fateful flat tire late on a cold night two decades before.

Mayfield’s prints were not in the Civil File, since the FBI had begun entering prints of military personnel only after he had left the army. He had never been suspected of terrorism, so they were not in the Special Latent Cognizant File either.

But in 1984, as a teenager just out of high school, he and some friends had had a blowout in a car without a jack. “It was late at night, far from home, and well below freezing with no nearby help,” he told me. “We tried to contact others in a sparsely populated neighborhood without any luck.” So he eyed another car, imagining the jack within. “I weighed the option of freezing or taking the jack, and decided to take the jack,” he said. “I contacted the owner of the car, paid for damages, and the charges were later dropped.”

When he was charged, however, he was also fingerprinted. That slender thread of circumstance put his prints in the Criminal Master File and placed him twenty years later in the path of a relentless federal juggernaut.

Once the IAFIS had generated possible matches, Green was supposed to do a finely focused analysis of every attribute at three levels of detail. “The human brain is the best tool available for image processing and comparison,” said an FBI report on the fiasco.
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But the human brain can also be influenced subjectively. Under pressure to identify the print in such a dramatic terrorist attack, Green and other examiners suffered from what the FBI later called “context bias.” They were pushed—and pushed themselves—so hard for a definitive conclusion that they ignored contradictory evidence. That predisposition came to infect the entire investigation, including agents in the field.

The lab identified the print as Mayfield’s on March 19, and he was put under twenty-four-hour-a-day surveillance by the FBI’s Portland office.

The prints displayed unusual similarity, and Green found fifteen points
in common; later, other investigators found ten. But he misinterpreted distortions in the latent print as minute features known as Level 3 details, such as pores and dots between ridges, and he erroneously identified them as identical to Mayfield’s. Wieners confirmed the match, as did a retired FBI examiner who was called in as a consultant despite having been reprimanded three times for misidentifications.
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An expert appointed by the court at Mayfield’s request also agreed with the identification.

But none of the examiners came untainted to the task. None approached it as a fresh problem, because all knew that a match had already been made by a respected specialist. Furthermore, two examinations raising doubts were dismissed as “incomplete and inaccurate,” said an internal FBI review. “To disagree was not an expected response.”
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(The FBI insists that it now insulates examiners from each other’s conclusions, but it refuses to say whether it combats “context bias” by preventing them from knowing the nature of the case.)
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As in the first bombing attack on the World Trade Center, circular reasoning also contaminated the work in this case, the inspector general reported. “Having found as many as ten points of unusual similarity, the FBI examiners began to ‘find’ additional features in LFP 17 that were not really there, but rather were suggested to the examiners by features in the Mayfield prints.”

Even more startling, the examiners knew that the prints didn’t fully match but rationalized away the disparities. Contrary to the lab’s “one discrepancy rule,” which is supposed to defeat an identification if a single difference exists, Green and the others reached very far to discount a major dissimilarity between Mayfield’s print and the upper-left-hand portion of LFP 17. The examiners explained it as coming from a separate touch by a different finger, even though “the ridge flow was consistent” with the rest of the print, the inspector general found, and “deposition pressure was consistent in both parts of the print, indicating that both areas were part of a single print.”

Furthermore, when the identification was sent to Madrid, the Spanish National Police (SNP) disagreed and issued a
“Negativo”
report. They saw no match at all. The FBI tried hard to interpret “negative” as “maybe,” and flew agents and examiners repeatedly to Madrid in a vain effort to persuade Spanish officials that the print was Mayfield’s.

“It seemed as though they had something against him,” Carlos Corrales, a commissioner of the Spanish National Police’s science division, told a
New York Times
reporter, “and they wanted to involve us.” The FBI “called us constantly,” he said. “They kept pressing us.”
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A major reason must have been Mayfield’s conversion to Islam, judging by FBI affidavits, which cited his religion. But that factor probably entered the equation after the lab made its initial identification. Although he and his attorneys argued in a lawsuit that religion was the reason his print was chosen in the first place, religion is not indicated on the inked fingerprint cards that examiners pull after the computer generates candidates, according to the inspector general, and nothing in Mayfield’s name gave a clue.

Once the investigation was launched, though, the FBI’s Portland office quickly learned that Mayfield was Muslim, had married a woman born in Egypt, had represented Jeffrey Battle of the Portland Seven, and attended the Bilal Mosque where other members of the conspiracy had worshipped. “One of the examiners candidly admitted that if the person identified had been someone without these characteristics, like the ‘Maytag Repairman,’ the laboratory might have revisited the identification with more skepticism and caught the error,” the inspector general reported. “A Portland Assistant United States Attorney called Mayfield’s religious beliefs a ‘mildly corroborating factor.’ ”

The inspector general’s book-length report is heavily censored—“redacted” is the official euphemism—with black strips and blocks obliterating much of the text regarding the secret FISA searches. Nevertheless, because Mayfield sued the government, many details were pried out into the open, and we know more about the use of FISA in this case than in practically any other investigation thus far.

Having the erroneous fingerprint identification and the sketchy profile of Mayfield, the FBI worried that he might be part of a second-wave attack inside the United States. The concern was so urgent that agents invoked a FISA provision allowing secret searches to begin without a court order—and therefore with scant justification—provided a judge is notified within seventy-two hours. The investigation was then propelled into its own orbit with little gravitational pull from the facts on the ground.

The FBI used FISA, not ordinary criminal warrants that would have authorized wiretapping, because it was convinced that it could not show a criminal violation by Mayfield. A senior attorney in the Justice Department disagreed, “stating that given the gravity of the Madrid bombings and the fingerprint identification of Mayfield, he believed the government could have obtained a criminal wiretap.”

Furthermore, the FBI claimed that its initial interest in Mayfield focused on gathering intelligence, not preparing a criminal case against him, and that therefore the Patriot Act amendment to FISA, downgrading foreign intelligence from “the purpose” to “a significant purpose,” was not essential; Fine’s office accepted this official spin and concluded that even before the Patriot Act, FISA warrants could have been obtained, since investigators were not aiming at a criminal prosecution.

But this convenient interpretation after the fact, possibly devised to protect the Patriot Act from political assault, was belied by statements at the time from agents who told Mayfield and his family “that he was being held as a primary suspect on offenses punishable by death,” meaning for a potential criminal charge, not for an intelligence purpose.
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Technically, he was arrested not for a capital crime but as a “material witness” under a statute designed to hold someone deemed likely to flee before testifying. It is a pernicious law now widely used as a form of preventive detention while criminal evidence is gathered. Together with FISA, it builds a legal labyrinth through which the FBI and the Justice Department adroitly evade protections enshrined in the Bill of Rights.

With Mayfield profiled as a Muslim involved in the Madrid bombings, the scattered bits and fragments of information that the FBI secretly collected were spliced neatly into a gathering fantasy. It was a thought process demonstrating the danger of clandestine spying, for when the target never has a chance to respond, the thinnest string can be spun into a shroud of suspicion. And thanks to the Patriot Act’s destruction of the wall between intelligence and criminal investigations, the “evidence” assembled was widely dispersed among at least eight federal agencies.
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Mayfield had once taken flying lessons, for example: very suspicious. If you’re Muslim, the last thing you want to do in America is learn to fly. A home computer had been used to research flights to Spain, rental housing there, and Spanish railroad schedules: doubly suspicious, especially since the agents didn’t realize that it was his twelve-year-old daughter’s school assignment to plan a fictitious vacation. A note they thought was Mayfield’s—actually an entry in her journal—displayed political heresy in criticizing the U.S. bombing of Afghanistan, declaring: “Who is America to bomb the Taliban because they don’t like Afghanistan’s law? All I say [is] that Americans should think twice about the example you are setting on the rest of the countries.”
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A phone number in Spain was found written down: the clincher! Except that it was merely the number of an exchange program Mona had been considering for Shane.
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Even a lack of evidence was used to bolster suspicion. When the inventive investigators couldn’t find any hint of foreign travel, they twisted two inconvenient facts into a sinister supposition. First, Brandon’s and Mona’s passports had expired, and second, there was no record that he’d left the country since his army service in 1994. The absence of such documentation led FBI Special Agent Richard Werder to make up this scenario and swear to it under oath, in an affidavit applying for an arrest warrant:

“Since no record of travel or travel documents have been found in the name of BRANDON BIERI MAYFIELD, it is believed that MAYFIELD may have traveled under a false or fictitious name, with false or fictitious documents.”

Werder then made an enormous leap that took his affidavit close to perjury: “I believe that based upon the
likelihood
[emphasis added] of false travel documents in existence, and the serious nature of the potential charges, Mayfield may attempt to flee the country if served with a subpoena to appear before the federal grand jury.”
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So much for the argument that if you’ve done nothing wrong, you shouldn’t mind the government spying on you.

Agent Werder also mixed religion and association into the grounds for suspicion. He noted that Mayfield attended a mosque and advertised in “Jerusalem Enterprises,” which was known as the “Muslim Yellow Pages” (and where, he neglected to mention, Avis, Best Western, and United Airlines also advertised).
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Mayfield’s attorneys called these “false and misleading affidavits” that were fabricated to justify the searches and arrest. “The concocted affidavits,” the lawyers noted, “falsely claimed that the SNP ‘felt satisfied with the FBI laboratory’s identification’ ” and omitted the negative finding by the Spanish National Police, which was issued April 13 as the FBI was snooping into Mayfield’s life.
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Inspector General Fine used milder language, concluding that the affidavits “contained several inaccuracies” that were “troubling in several respects.”