Yesterday in Little Rock, ground was broken on something amazing.
I say it’s amazing, because here in the Bible Belt, there is precious little tolerance for non-Christian points of view. If one isn’t Christian, one is unknowably alien, and to some, one is completely suspect.
Isn’t this a Christian nation? (Well, no, actually this country isn’t a theocracy at all.) Without Christian values, aren’t we likely to devolve into moral depravity? (No. Christians don’t have a monopoly on moral behavior – never have had and never will have.) But we all should accept Jesus Christ as our personal Lord and Savior! (Says who? Jesus? That has all the logic of a parent whose justification is, “Because I said so!”)
“Anne, you’re an atheist.” I hear the condemnation, and I take umbrage. I prefer the term “polyatheist.” There are a lot of gods I don’t believe in. And no doubt, anyone reading this is also a polyatheist. There are lots of gods that have been worshipped over the eons of humanity, and I’d bet my money that not a single reader of this essay believes in very many of them.
Christianity adopted many pagan traditions as it evolved. Celebration of the solstices and equinoxes are among those traditions. Christmas falls within a few days of the winter solstice, as does Hanukkah. Likewise, do the celebrations called Saturnalia, Maruaroa o Takurua, Deuorius Riuri, Amaterasu, Yule, Bodhi Day (also known in Buddhism as Rohatsu), Hogmanay, Soyal, Zagmuk, Beiwe, Shabe-Yalda, Lussi Night, Meán Geimhridh, Brumalia, Lenaea (the ancient Greek Festival of Wild Women), Alban Arthuan, Choimus, Inti Raymi, Maidyarem, Karachun, Makara Sankranti, Ziemassvētki, and Perchta. This list is by no means exhaustive. We will never know the many ways the winter solstice and the days surrounding it were marked by paleo-humans, but they left unwritten records of the fact that the event was noted and celebrated. Places like Stonehenge make drawing this conclusion inescapable.
So what is so groundbreaking in Little Rock?
The fact that a group of non-Christians have been allowed to place a display on the capitol grounds explaining the significance of the winter solstice. Last year the Arkansas Society of Freethinkers asked the Arkansas Secretary of State for permission to erect a display and were refused the opportunity. This year, they again asked permission and again, were denied. So they filed suit through the ACLU.
This, in a place where the State Constitution makes discrimination against atheists legal!
You don’t believe me? See Article 19, Section 1 of the Arkansas Constitution:
“No person who denies the being of a God shall hold any office in the civil departments of this State, nor be competent to testify as a witness in any court.”
Last February a rational thinking legislator tried to get a resolution passed to pave the way to repealing that section of the Constitution, but, sadly, it went nowhere.
But hope springs eternal. Perhaps even Arkansas will someday be seen as progressive, or at least not medieval.
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” – U.S. Const. Amend. IV.
On March 11, 2004, 191 people were killed and more than 1600 were injured when bombs placed by terrorists exploded on a Madrid, Spain, commuter train. Latent fingerprints were lifted from a suspicious plastic bag, and Interpol sent digital photos of them to the FBI in Quantico, Virginia.
No matches were found in the FBI’s database until higher resolution digital photos were sent the next day. This time, 20 potential matches were returned with respect to one of the latent prints. The FBI was able to pull names, addresses, sex, race, birth dates, and Social Security numbers for the 20 potential matches, and performed background checks on each of them.
Brandon Mayfield, a 38 year old practicing lawyer living near Portland, Oregon with his wife and three children, was ranked number 4 on the list of potential matches for the latent print. Mayfield had not been outside the US since 1994 (he didn’t even have a current passport), and had never been arrested for a crime.
A supervisor in the department that matches fingerprints decided that Mayfield’s prints matched the latent print. For verification, as the FBI sometimes does, independent confirmation was sought. The person who confirmed the match was a former FBI employee who had been reprimanded several times for falsely or erroneously matching fingerprints. He knew that the FBI had already made the match, and he was aware that Mayfield was a practicing Muslim. Because there were less than 12 points at which the latent print and Mayfield’s prints matched, a third analyst also reconfirmed the match. The second reconfirmation was also tainted by the fact that the third examiners knew that the first two had made the match and by the knowledge that Mayfield was Muslim.
The FBI began surveillance of Mayfield and his family. They followed then to the mosque they attended, to the children’s school, to Mayfield’s law office, and to family activities. Attorney General John Ashcroft personally applied to the Foreign Intelligence Security Court (FISC) for an order to permit placing bugs in the private rooms of the Mayfields’ home. While waiting for the FISC order, the FBI went ahead and placed the taps on phones both in the home and in Brandon Mayfield’s law office. They began gathering information about the Mayfields from other people. They also did “sneak and peek” entries into the home and law office, entering, but not removing anything. The Mayfields detected the entry and believed they had been burglarized.
Three weeks later the FBI sent Mayfield’s prints to Spain. In the meantime, several Moroccan immigrants to Spain had been arrested in connection with the bombing. There was no connection between the Moroccans and Mayfield. The Spanish authorities examined the fingerprints and found too many dissimilarities, so notified the FBI that there was no match. The Spanish authorities had the original latent prints, not digital photos of them, for comparison purposes. A formal report from Spain to the FBI followed. Not to be deterred, the FBI sent agents to Spain, but the Spanish authorities were firm. There was no match of Mayfield’s prints to the latent print.
The FBI was still determined to connect Brandon Mayfield to the Madrid bombing. In support of its request for a warrant to arrest Mayfield as a material witness to the bombing, an FBI agent swore in an affidavit that the FBI had determined Mayfield’s prints and the latent print were a 100% match. No mention was made of the Spanish conclusion that the prints were not a match. The affidavit also emphasized Mayfield’s religion and ties to the Muslim community.
Once he was arrested, Mayfield vehemently protested his innocence, but an independent fingerprint examiner selected by Mayfield and his lawyers also determined that the prints were a match.
Thanks to broad search warrants for the Mayfield home and law office, computer files, papers, and even the Mayfield children’s homework was seized by the FBI. Mayfield was held incommunicado in a detention facility, and he and his family were told that he was to be charged with crimes punishable by death. They were told that there was a 100% match between his fingerprints and those found in Madrid. The FBI and the Department of Justice leaked information about the arrest to the press, and there were international headlines proclaiming Brandon Mayfield to be involved in the Madrid bombing.
Two weeks after his arrest, Spain notified the FBI that it had matched the latent print in question with an Algerian. Spain specifically notified the news media that the print did not match Mayfield’s. Mayfield was released from detention the next day, but was ordered to remain on home detention for the next several days.
At least eight federal agencies, the CIA, the National Security Council, the Department of Defense, Homeland Security, the Department of Justice, the FBI, the Department of the Treasury, and the NSA, now have “photocopies or photographs of documents from confidential client files in Mayfield’s law office, summaries and excerpts from the computer hard drives from the Mayfield law office and plaintiffs’ personal computers at home, analysis of plaintiffs’ personal bank records and bank records from Mayfield’s law office, analysis of client lists, websites visited, family financial activity, summaries of confidential conversations between husband and wife, parents and children, and other private activities of a family’s life within their home.” – Mayfield v. United States (CIV. 04-1427-AA, p. 23), ___ F.Supp. ___ (26 Sept., 2007).
It’s not surprising given this chain of events that Brandon Mayfield, his wife, and their three children sued the federal government.
The USA PATRIOT Act allowed the federal government to conduct secret surveillance of Brandon Mayfield and his family based entirely on the misidentification of that latent fingerprint, even after Spain had determined there was no match. The unconstitutionality of the Foreign Intelligence Security Act (FISA) as amended by the USAPATRIOT Act was the subject of a decision by one of Oregon’s federal judges this week.
The USAPATRIOT Act modified the FISA, 50 USC §§ 1801 et seq., to allow the federal government to conduct secret surveillance of U.S. citizens without having to meet the requirements of the 4th Amendment to the U.S. Constitution against unreasonable search and seizure, and against warrantless searches and seizures.
Until 2001, when the federal government sought a warrant under FISA, a high ranking member of the intelligence community, such as the Director of the FBI, was required to certify that the primary purpose of the surveillance was to obtain foreign intelligence information. With passage of the USAPATRIOT Act, that standard is changed. The government now needs only to claim that foreign intelligence gathering is merely a significant purpose of the surveillance. 50 U.S.C. §§ 1804(a)(7)(B) and 1823(a)(7)(B). Because of the USAPATRIOT Act, FISA surveillance orders can be obtained even if the government’s primary purpose is to gather evidence of local, domestic criminal activity.
What does this mean? Passage of the USAPATRIOT Act meant that for the first time since 1791, when the Bill of Rights was adopted, the government could conduct searches and seizures without showing that a crime was either contemplated or had already been committed. It means that the federal government can avoid the probable cause requirement of the Fourth Amendment by merely alleging that part of the reason for the search and seizure is related to foreign intelligence gathering.
The government doesn’t have to suspect its target of any criminal activity at all, so long as gathering foreign intelligence is claimed as part of the reason for the search. The government only has to make a nexus of some sort between foreign terrorism or international espionage and the targeted person or place, and the approval for surveillance is granted under FISA. There doesn’t have to be any specific activity that the government is concerned about, unlike in the Fourth Amendment searches and seizures, where the affidavits and resulting warrants have to be specific as to the information to be sought and seized.
FISA allows surveillance to continue for four months at a time, whereas similar activity in the context of a normal criminal investigation is only allowed to continue for 30 days.
Furthermore, the government can retain the information obtained in the search without notifying the target of the search. Under the Fourth Amendment, the target of the search not only knows there has been a search but has been officially served with a warrant for it, and can challenge the validity of the warrant and the underlying affidavits in court. No such judicial challenge is available under FISA. Unless there is a criminal prosecution under FISA, the target may never know that the government has been watching him, tapping his phones, following him to work, or copying documents or records he thought were private.
The Oregon Federal District Court was mindful of the conflict between preserving the constitutional rights of Americans and the need for national safety and security. It was also mindful that the United States Supreme Court had already determined that the Executive Branch’s arguments to be specious “that ‘internal security matters are too subtle and complex for judicial evaluation’ and that ‘prior judicial approval will fracture the secrecy essential to official intelligence gathering.’” United States v. United States District Court, 407 U.S. 297, 320 (1972).
In 2002, the seven federal judges who are allowed to issue warrants for FISA surveillance – the only seven people in the country who have that power – issued a unanimous opinion finding that the procedures for obtaining approval for surveillance under FISA after passage of the USAPATRIOT Act were improper because they appeared to be geared toward law enforcement purposes rather than toward foreign intelligence gathering.
The U.S. government appealed. The FISCR, the court that reviews any appeals from the FISA court, reversed the unanimous decision of those seven judges. The government was the only party allowed to argue the case even though a number of entities had filed briefs as amicus curiae (friends of the court), urging the appellate court to uphold the ruling of the FISC judges. Only the government is allowed to ask the United States Supreme Court to review appeals from the FISCR.
This week, in striking down the relevant portions of FISA as amended by the USAPATRIOT Act, the Oregon District Court said:
It is notable that our Founding Fathers anticipated this very conflict as evidenced by the discussion in the Federalist Papers. Their concern regarding unrestrained government resulted in the separation of powers, checks and balances, and ultimately, the Bill of Rights.
. . .
[T]he constitutionally required interplay between Executive action, Judicial decision, and Congressional enactment, has been eliminated by the FISA amendments. Prior to the amendments, the three branches of government operated with thoughtful and deliberate checks and balances – a principle upon which our Nation was founded. These constitutional checks and balances effectively curtail overzealous executive, legislative, or judicial activity regardless of the catalyst for overzealousness. The Constitution contains bedrock principles that the framers believed essential. Those principles should not be easily altered by the expediencies of the moment.
Despite this, the FISCR holds that the Constitution need not control the conduct of criminal surveillance in the United States. 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. The defendant here 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.
Thank you, Judge Ann Aiken.
Read the entire decision here: Mayfield v. United States