Beware When A ‘Patriot’ Acts

This afternoon Attorney Gen. John Ashcroft announced that multiple sources of intelligence indicate that Al Qaeda has the “specific intention to hit the United States hard” in the coming months.

Pointing to high profile events coming up—the June Group of Eight economic summit in Sea Island Georgia, the Democratic National Convention in Boston in July, and the August Republican National Convention here in New York—Ashcroft ominously warned that “the face of al Qaeda may be changing.” However, coupled with the announcement that the nation’s terror alert level will not be raised, the attorney general’s statement was difficult to parse for its specific implications and intent.

Any time the horrifying prospect of another terrorist attack on New York, or indeed the nation, is raised, it is tempting to hold our fire on the federal government for its inept prosecution of the war on terror. However, in a democracy, it is at just such a time that it is absolutely critical to air difficult questions.

Earlier this week in Portland, Oregon, a federal court judge threw out the case against an American lawyer who had been held for two weeks as a material witness in March’s Madrid training bombing case. The judge acted after the FBI said it had mistakenly matched Brandon Mayfield’s fingerprints, which were on file due to his service years ago as an Army lieutenant, with those found on a plastic bag found near the site of the bombing. The bureau explained that the error was due to the use of a digital reproduction of the actual print found in Madrid.

The “coincidences” surrounding this mistake boggle the mind. Mayfield is a Muslim convert who represented Jeffrey Leon Battle—who is one of the so-called “Portland Seven” and who pled guilty last fall to charges of laundering money to aid the former Taliban government of Afghanistan—in a custody case. Upon the dismissal of his own case, Mayfield expressed outrage, saying “This is a serious infringement on our civil liberties… In a climate of fear, this war on terrorism has gone to the extreme and innocent people are victims as a result.”

It is difficult to dismiss Mayfield’s outrage with the sweeping, and exculpatory, conclusion that mistakes unfortunately happen. Press accounts of the case have not delved into the specifics of fingerprinting technology or how conclusions can be compromised by using digital reproductions, but as a layman I am dubious about the claim that, out of the billions of fingerprints in the world and the infinite number of potential fingerprint combinations, the FBI made an error which just happened to implicate a Muslim American attorney who had served as a legal advocate for a man convicted of aiding a regime linked to Al Qaeda.

Somebody’s going to have to explain that one to me like I’m a five-year-old.

The report in today’s New York Times that the Spanish government raised doubts about the fingerprint match with the FBI weeks before Mayfield’s detention—and that U.S. officials failed to check the original print when they traveled to Madrid to convince the Spaniards that they were right—only adds to the stink surrounding this story.

This tale is chilling enough all on its own, but it should be understood in the larger context of the debate about renewing and strengthening the federal Patriot Act, passed to counter terrorism in the wake of 9-11. Ashcroft and Pres. George W. Bush have made it a centerpiece of their legislative agenda in this election year. Yet, as The Times reports, the Justice Department has used detention of material witnesses, such as that imposed on Mayfield, on at least 50 occasions since 9-11.

Unfortunately, the overreaching is not simply a problem of zealotry in Ashcroft’s Justice Department. As Andy Humm reported here two weeks ago, Manhattan District Attorney Robert Morgenthau is telegraphing his intolerance for dissent months in advance of the Republican Convention by his selective prosecution of four activists, with long histories of civil disobedience, facing charges in connection with the March 26, 2003 anti-war demonstration in Manhattan. Judge Robert Stolz, presiding over the case, called such political protest “an imposition” of the demonstrators’ opinion on “the people of the City of New York.”

This nation is moving into the critical phase of a presidential campaign with the most profound implications for our future. The country is as polarized as it has been since the Vietnam War. Voices of all sorts, including angry voices of dissent, must be heard. The attitudes that Ashcroft betrays, the FBI’s disgraceful handling of the Mayfield case, and Morgenthau’s tough guy approach toward protest in the streets of New York are all things that Americans cannot afford to tolerate.