The Rights of the People (34 page)

Surreptitious surveillance never quite ends, at least inside your fears. The FBI “never told us,” Mayfield said, “where they placed the electronic bugging or cameras and recorders. To this date they haven’t told us where they put it, so we’re thinking that we’re still kind of violated, that they were listening to our most intimate conversations and watching our most intimate moves.” Even after being cleared, “I couldn’t help feeling I was being bugged and watched. I didn’t feel comfortable after coming home from jail talking to my wife in my living room. It took me a year to feel comfortable.”

Hiring a private contractor “to do what they call a military sweep” would cost $30,000, he learned, with no guarantee that all the bugs would be discovered, because “you cannot find evidence of a certain type of electronic bugging equipment if it’s there and not activated.” With their house having been invaded, he said, “We’re thinking of moving.” And they did.

As part of his financial settlement with the government, Mayfield retained the right to pursue a lawsuit challenging the constitutionality of the Patriot Act, and in 2007 won a ringing declaration from federal district court judge Ann Aiken that Section 218 of the statute, changing “the purpose” to “a significant purpose,” violated the Fourth Amendment by permitting search orders from the secret Foreign Intelligence Surveillance Court, without probable cause, that aimed not just at foreign intelligence but primarily at domestic criminal activity—just the kind of law enforcement
the framers envisioned as requiring ordinary search warrants. “Now, for the first time in our Nation’s history,” she wrote, “the government can conduct surveillance to gather evidence for use in a criminal case without a traditional warrant, as long as it presents a non-reviewable assertion that it also has a significant interest in the targeted person for foreign intelligence purposes.”

Under the law, she noted, that assertion cannot be rejected by judges of the Foreign Intelligence Surveillance Court (FISC) unless it is “clearly erroneous,”
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a threshold so high that it’s virtually impossible to cross without hearing arguments from the target, who is completely unaware that he has become so interesting. Congress had cleverly constructed a closed circle of executive power.

Mayfield’s case was a textbook example of its abuse. “Here,” Judge Aiken wrote, “the government chose to go to the FISC, despite the following evidence: Mayfield did not have a current passport; he had not been out of the country since completing his military duty as a U.S. Army lieutenant in Germany during the early 1990s; the fingerprint identification had been determined to be ‘negative’ by the SNP; the SNP believed the bombings were conducted by persons from northern Africa; and there was no evidence linking Mayfield with Spain or North Africa. The government nevertheless made the requisite showing to the FISC that Mayfield was an ‘agent of a foreign power.’ That representation, which by law the FISC could not ignore unless clearly erroneous, provided the government with sufficient justification to compel the FISC to authorize covert searches and electronic surveillance in support of a criminal investigation.”

The judge summed up the impact of the law as amended by the Patriot Act. “In place of the Fourth Amendment, the people are expected to defer to the Executive Branch and its representation that it will authorize such surveillance only when appropriate,” she wrote. “The defendant here [the government] is asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. This court declines to do so.”
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However, a three-judge appeals panel in the Ninth Circuit vacated Aiken’s decision, ruling that Mayfield had no standing to pursue his claim that his Fourth Amendment rights had been violated, “because his injuries have already been substantially redressed by the settlement agreement.” The judges did not address Mayfield’s central point: the unconstitutionality of the Patriot Act’s amendments to FISA.
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If the means of surveillance exist, an investigator will use them: That is the axiom of the law. Liberty cannot rely on the restraint of individual officials, depend on their discretion, or presume that powers will be exercised judiciously. At the very least, whatever the law allows will be done, and done enthusiastically, as it was in monitoring Jeffrey Battle and the other Portland residents after they tried to join the wrong side in Afghanistan. The case illustrates how usefully the traditional tools of criminal investigation can be enhanced by FISA.

On September 29, 2001, a group of Oregon men, most of them African-American Muslims dressed in robes and turbans, drove to a private gravel pit in Washington State to practice shooting an assortment of shotguns, pistols, and rifles. They were interrupted by a deputy sheriff who had been called by a neighbor after hearing the shots. Despite their appearance, their arsenal, and the nation’s high state of anxiety, the deputy did not detain them or check the legality of the firearms, which included a fully automatic Chinese SKS 7.62 assault rifle, banned by federal law. This was gun country, after all. He merely took their names and told them that because they were on private property, they had to leave.

They did, although Battle, running his mouth later, bragged that “we was gonna pop him” and left him alive only because “the cop was cool … a gun guy.”
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Toward the end of October, several weeks after the American invasion of Afghanistan, the men flew to China, where one of them, Patrice Lumumba Ford, had studied Mandarin for two years in a Johns Hopkins postgraduate program. Intending to cross into Pakistan and then Afghanistan, they made their way to western China’s Xinjiang Uygur area, but with warfare raging on the Afghan side of the border, Chinese patrols and checkpoints had multiplied, and the main highway toward the mountainous frontier had been closed for the coming winter to all but returning Pakistanis.

The “muscular men,” doing chin-ups from a hotel lobby’s rafters and practicing martial arts in the courtyard in Kashgar, seemed like “uninformed goofballs” to an American journalist, Ron Gluckman, who was there reporting a story on Chinese Muslims. They dissembled, he said, giving various versions of their travels. “Ford told me directly that he had never been to China before, then spoke Mandarin on the phone.” They seemed out of their element. “You meet all kinds on the road,” Gluckman
observed, “but you sometimes worry about lost souls.” And worry more than suspicion propelled him to notify the American embassy back in Beijing, “not to get them in any trouble, really just for their own good,” to “at least let someone in authority know there was a bunch of guys that might wind up in trouble out there.”
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They hired a driver, but he backed out because of Chinese security on the road. Then they tried a bus, but the driver wouldn’t let them board.
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Retreating to Beijing, they applied at the Pakistani embassy for visas, were turned down, and then split up, two returning to the United States immediately, others traveling to Malaysia, Indonesia, and Bangladesh, apparently searching for a Muslim struggle to support, before going home. One was arrested in Malaysia, and another—a Jordanian, Habis al-Saoub—managed to get to Pakistan, where he was reportedly killed.

Otherwise, they never reached the battlefield, never fired a shot, and never even made contact with al-Qaeda or the Taliban. Instead, they were caught in the snare of their own delusions.

“I don’t think their purposes were well defined,” said Kristen L. Winemiller, who represented Battle. The victim of a violent home, he had meandered from one faith to another during his twenties, she said, ending as a convert to Islam after seeing the film
Malcolm X
. Funny, dramatic, with a bent for wild talk, he seemed entirely unsuited for combat. “My client had enlisted in the U.S. Army and washed out because he was not physically fit,” she noted. “He was overweight and not a very good soldier. I can’t imagine the Taliban would have looked at him and said he’d make a good soldier.”

Ford’s mother, Sandra, remembered his saying that “he was going to try to lend assistance to women and children.” Her voice was still laden with sad disbelief. “He didn’t question enough the reasons other people were going, and he didn’t explain enough his reasons for going. I believe he was truly going for humanitarian reasons. He got raised that way. All his siblings have the same sense of charitableness and caring for other people. He’s a cerebral person, a thinking person.”

And a bit too trusting, added his father, Kent, who founded Portland’s Black Panther chapter in 1969 and became a target of surveillance, secret searches, harassment, and arrest during the years of the FBI’s counterintelligence program COINTELPRO. The experiences had taught him lessons that he regretfully neglected to impart to his son. “You shelter your kids, and he was just a baby, and he didn’t know the extent they would go to entrap you,” said Kent. “I wish I had talked to him about this. I never did say much unless he asked. He did not ask very much.” And if
the conversations had occurred, would his son have behaved differently? “I don’t know,” Kent answered. “He’s the kind of person where he trusted everybody.” Including an informant, as it turned out.

Federal authorities paid no attention to the men until well after most of them had returned from their abortive adventure. One day, a vigilant landlord arrived at an FBI office carrying a bag of trash containing items that looked suspicious: an expired Jordanian passport (al-Saoub’s), writings in Arabic, and a martyr’s will about dying in Afghanistan. The investigation began in earnest.

Khalid Mostafa, an FBI informant, was inserted by the government into the Muslim community, where he attended services at a mosque and befriended Ford and Battle, recording conversations that he “repeatedly steered … to topics involving illegal arms purchases and violence,” according to the defense.
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It is possible, but has never been confirmed, that warrantless surveillance by the National Security Agency was used. What is known is that both FISA warrants and ordinary Title III criminal warrants were combined in a potent system of monitoring.

According to Charles Gorder, the assistant U.S. attorney who prosecuted the case, FISA was used to tap telephones and to place a bug in Battle’s apartment, which his lawyer told the court captured “highly personal” family conversations unrelated to the investigation.
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Other information came by traditional means: Travel records were obtained through grand jury subpoenas, Gorder said, and “e-mails were obtained through criminal search warrants after the fact.” The e-mail addresses were found when Battle naïvely gave his computer to Mostafa for safekeeping, and Mostafa turned it over to the FBI.

This interaction among various methods, and especially the flexible intelligence-gathering mechanisms of FISA, reduced one significant source of tension that often runs through such cases: While the FBI was gathering enough evidence to prosecute, the suspects were on the loose, possibly poised to attack. Battle had been recorded by the informant as toying with the notion of assaulting a synagogue or a Jewish school to retaliate for Israeli attacks on Palestinians. “If every time [the Israelis] hurt or harm a Muslim over there,” Battle said, “you go into that synagogue and hurt one over here, OK, they’re gonna say, Wait a minute, we gotta stop, we’re seeing a connection here.”
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So the government wanted close monitoring, and FISA was the instrument, used “to keep investigators apprised of what these guys were doing,” Gorder explained. “There was a point where we had enough evidence to arrest Battle,” said the prosecutor, “but we didn’t have enough evidence
to arrest” the others, who would “undoubtedly scatter or attempt to cover up their crimes” once Battle was seized. “It was important to keep track of Battle so we could be comfortable in waiting to arrest him.… If he had gotten the word to start some domestic attack, we would have had a good chance of knowing about it in advance.”
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But why use FISA? There was “no reason why this case could not have been investigated like any other criminal case,” wrote Kristen Winemiller in a motion seeking to have the FISA recordings suppressed and FISA struck down as unconstitutional. Using FISA was “the simplest way to circumvent safeguards the United States Constitution provides its citizens,” she argued.
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That made FISA a handy tool. Without it, the surveillance of Battle and Ford would have been less comprehensive. To get an ordinary wiretap warrant under Title III of the criminal code, Gorder explained, “you have to show probable cause that a telephone line is being used for criminal activity.” For example, “In a traditional narcotics wiretap, you normally have to show that drug dealers have discussed their business over that particular phone line in the recent past.”

Even if that had been possible in the Portland case, investigators didn’t want to be restricted to a particular phone. They might have obtained roving wiretaps, which have been legal since the mid-1980s to monitor any phone that a suspect is using, but those “require showing that the guy is changing phones to evade detection,” Gorder said. With Title III warrants, “it might have been possible to cover some of the facilities being used by these guys, but not all.” By facilities, he evidently included Battle’s apartment.

A FISA warrant has a looser standard—or, as Gorder preferred to say, “a different standard.” To monitor a U.S. person—a citizen or resident alien—you need “probable cause to believe the subject is an agent of a foreign power, and he’s committing some crime as part of being an agent of a foreign power. Then you can get an order to surveil all specific facilities that he’s using. You don’t have to tie it to a particular phone.” That was convenient, but it was not clear what “foreign power” the Portland group represented, since they never contacted the Taliban, al-Qaeda, or any other such entity. The basis for the FISA order remained classified.