Mayfield Demands FBI
Return Copies of Files
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
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
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
"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
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.
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