Potential Evidence Surfaces of Bush's Illegal Spying

By Onnesha Roychoudhuri, AlterNet. Posted May 8, 2006.

Five months after news of the NSA's warrantless spying program broke, and after we've learned numerous details of the program's extent, a Portland, Ore., attorney may have finally obtained hard evidence of illegal wiretaps by the government.

Thomas Nelson has been practicing administrative law for most of his professional life, but after Sept. 11 he first began offering pro bono work for immigrants detained in broad FBI terrorism sweeps. He is currently leading a little-discussed case that may contain the first documented evidence of an illegal wiretap and believes that, as a result, he himself has been subjected to warrantless -- and therefore illegal -- wiretaps and physical searches, the kind of clandestine operation that Nixon referred to as "black bag jobs." And as a result of extreme carelessness by the FBI, Nelson may have his hands on the only solid evidence of these searches.

The story begins in February 2004, when the Office of Foreign Assets Control froze all funds of the Oregon branch of the Saudi Arabian charity Al-Haramain. Attorneys Asim Ghafoor and Wendell Belew defended the charity against the government's allegations that Al-Haramain Oregon was taking part in terrorist activities.

In August 2004, as a routine court procedure, the FBI provided the lawyers and defendants with documents relating to the trial. The FBI's lawyers accidentally released a document that showed the government had used logs of conversations between the lawyers and their clients, Soliman al-Buthi and the organization, to categorize Al-Haramain as a terrorist group. The catch is that the logs were obtained without a warrant.

Ghafoor and Belew initially assumed that the document was obtained through the Foreign Intelligence Surveillance Act (FISA) -- which allows for warrantless wiretaps as long as a warrant is obtained within 72 hours. But they grew suspicious when the FBI requested the return of that document. The lawyers immediately complied, but the FBI failed to contact both Al-Buthi and Seda, both now living overseas, to get their copies back.

When the New York Times broke the news of the NSA spy program last December, Belew and Ghafoor realized that the logs obtained of their attorney-client communications were probably a result of the program. That's when they contacted Thomas Nelson, an attorney representing al-Buthi in a separate case (PDF).

Another missed 'slam dunk'

On May 6, 2004, Nelson's close friend, 37-year-old civil and immigration lawyer Brandon Mayfield, was arrested as a material witness in the Madrid train bombings. The linchpin in the case against Mayfield was a low-quality fingerprint from a bag in Spain that contained detonation devices.

Though Mayfield hadn't traveled abroad in nearly a decade, and although the Spanish authorities continually asserted their doubts regarding the print match, the Department of Justice held him for two weeks while they tried to compile evidence in the case.

While Nelson helped Mayfield put together a defense, he observed firsthand the lengths to which the government went to to justify Mayfield's detainment. After the fingerprint was mistakenly tied to Mayfield, Nelson says the FBI started following him to try to find any evidence against him.

As the Portland Oregonian reports,

Initially, Portland's squad of investigators had just a few pieces of information about Mayfield. They knew his birthday and Social Security Number, and that he'd served in the military from 1985 to 1994. Analysts checked FBI databases to see if Mayfield was the subject of any investigations. He wasn't, but a deeper search circumstantially connected Mayfield to "other suspected terrorists." Court records showed that less than two years earlier, Mayfield had represented Jeffrey Leon Battle in a custody dispute. Battle was a member of the Portland Seven, a group arrested in 2002 for plotting to fight with the Taliban against U.S. soldiers.

Mayfield's legal files were seized by the government, and he had to fight to have them reviewed by a third party that could provide sufficient protections of the privileged material. An Oregon judge agreed to this and, finding nothing suspicious, ordered the government to release them.

Even as Spanish officials questioned the fingerprint match, FBI officials in Washington urged Portland prosecutors to disregard them. An e-mail from an FBI counterterrorism supervisor reads, "I spoke with the lab this morning, and they are absolutely confident that they have a match on the print. -- No doubt about it!!!!"

These kind of "slam-dunk" pronouncements have a way of backfiring: On May 19, Spanish authorities conclusively determined that the print belonged to Ouhnane Daoud, an Algerian citizen. On May 20, Mayfield was released, and the judge in the case /www.nacdl.org/__8525701C006539F8.nsf/0/9090373DE4FA9C7D85256F3300551E42?Open">refused the government's request to continue monitoring Mayfield's communications.

Onnesha Roychoudhuri is an assistant editor at AlterNet.

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