By WILLIAM McCALL

The attorney for a Portland man wrongly linked to the 2004 Spain train bombings demanded in court Friday that the FBI return or destroy copies of paper and computer files seized from Brandon Mayfield's home.

Keeping copies of any seized files amounts to an invasion of Mayfield's privacy, attorney Elden Rosenthal told a three-judge panel of the 9th U.S. Circuit Court of Appeals.

"A man we now know was innocent found himself in the crosshairs of the FBI and the Department of Justice," Rosenthal said. "An innocent man should not have his private papers seized."

Mayfield was arrested in May 2004, two months after bombs ripped through commuter trains in Madrid, Spain, killing 191. The FBI initially said fingerprints found on a bag of detonators recovered at the scene matched Mayfield's, but later said they belonged to someone else, released Mayfield and apologized to him.

A convert to Islam, Mayfield has filed a lawsuit against the U.S. government, arguing he was singled out because of his faith. He also charges that key sections of the Patriot Act, which he says were used to install wiretaps and conduct secret searches of his home, are unconstitutional.

In the first of two pretrial hearings held in his lawsuit on Friday, Mayfield's attorneys and an attorney for the Justice Department disagreed over Mayfield's demand that copies of files taken from his home be returned or destroyed.

Kirby Heller, a Justice Department attorney, argued the government needs the copies to prepare its defense against his lawsuit because it challenges the Patriot Act.

The act broadened the Foreign Intelligence Surveillance Act of 1978, or FISA, which allows federal agents to collect information on suspected terrorists. The Patriot Act now permits that information to be used in criminal prosecutions.

Rosenthal said the government should not benefit by keeping private records obtained by mistake.

"The government has said we are satisfied we made a mistake. We got the wrong man," Rosenthal told the judges.

Judge Andrew Kleinfeld, who sharply questioned both Rosenthal and Heller, said the search of Mayfield's home was lawful despite the mistake.

"If it was an unlawful search I'd have no problem destroying all copies," Kleinfeld told Rosenthal. "But once there is a lawful search, the subject of the search has already lost his privacy."

Heller said the government acted in good faith but now needs the copies of the files to defend itself.

"The test is reasonableness," she said. "The sanction of destroying copies is extreme."

Kleinfeld, however, appeared skeptical.

"Why are you entitled to more to defend yourselves than any other litigant in a civil suit?" he asked Heller.

The three appeals court judges gave no indication when they would rule.

An internal FBI e-mail released this week with court documents said agents did not have enough evidence to charge Mayfield with a crime as the FBI raced to make an arrest before reporters found out Mayfield was a suspect.

The FBI instead arrested Mayfield as a "material witness" under a law originally intended to protect witnesses but now criticized by the American Civil Liberties Union and other civil rights advocates as a tool to hold suspects without charging them with a crime.
 

Copyright © 2005, KGW