Weekend Economists Salute Our (Founding) Fathers June 14-16, 2013

[Demeter]

16. The Other Side of the Story By GAIL COLLINS

http://www.nytimes.com/2013/06/15/opinion/collins-the-other-side-of-the-story.html

The deck is always stacked when we debate keeping the nation safe.

Recently, we discovered that the National Security Agency is keeping an enormous file of our phone calls. In the N.S.A.’s defense, its chief, Gen. Keith Alexander, said “dozens” of potential terrorist attacks had been thwarted by that kind of effort. The director of the F.B.I., Robert Mueller, suggested it might prevent “the next Boston.”

How do you argue with that? True, the N.S.A. program had been up and running for years without being able to prevent the first Boston. And Alexander declined to identify the thwarted attacks, arguing that might aid potential terrorists. But most Americans were sold. The words “terrorist attack” conjured up terrible, vivid pictures. On the other side was just a humongous computer bank full of numbers. If you didn’t do anything wrong, what was the problem?

Today, let’s try putting a face on it in the form of Brandon Mayfield.

A Kansas native, Mayfield went to college and law school, served in the Army, married, had three children and moved to Portland, Ore., to practice law. His story begins with — yes! — an enormous federal database, in this case the one that collected fingerprints of Americans who served in the military. In 2004, after terrorists bombed commuter trains in Madrid, Spanish officials found a suspicious fingerprint on a plastic bag at the scene. The F.B.I. ran it through its files and decided, erroneously, that it matched Mayfield’s. Further investigation revealed that Mayfield had married an Egyptian immigrant and converted to Islam — information the authorities apparently found far more compelling than the fact that he had never been to Spain.

Peculiar things then began to happen in the Mayfield house. His wife, Mona, returned home to find unlocked doors mysteriously bolted. Their daughter, Sharia, then 12, noticed that someone had been fooling around with her computer. “I had a desktop monitor, and it looked like some of the screws had been taken out and not put back in all the way,” she said in a phone interview. “And the hard drive was sticking out.” Later, the family would learn that agents had broken into their home and Mayfield’s law office repeatedly, taking DNA swabs from the bathroom, nail clippings and cigarette butts, along with images of all the computer hard drives.

“I became very paranoid that someone was going into my room,” said Sharia.

The snoopers had warrants from the court set up by the Foreign Intelligence Surveillance Act. FISA courts are supposed to keep investigators within the law while they’re secretly searching for terrorists. We have been hearing a lot about this recently, since the Obama administration keeps pointing out that the N.S.A.’s phone records project had the blessing of FISA judges. Last year, the feds made 1,856 requests to FISA judges and got 1,856 thumbs-up.

So there we are: Search of huge database produces a (wrong) name. Investigators get permission to search an American family’s house without their knowledge, from a secret court that does not seem to be superhard to convince. One day, F.B.I. agents walked into Mayfield’s office, handcuffed him and took him away. When Sharia left school, her brother met her and told her that their father had been arrested. She assumed it was a joke.

“I said something like, ‘Oh — good one, bro.’ Then my brother started to cry.”

For the next two weeks, Mayfield remained in jail, imagining a possible death penalty. His daughter recalls the family’s isolation, coupled with omnipresent radio and television reports about the alleged Madrid bomber. “School was a refuge in some ways from the reality of home, which was hell,” Sharia said.

Spain saved the day. The Spanish investigators were dubious from the beginning that the fingerprints at the bombing site were Mayfield’s; they had been hoping, perhaps, for a person who had set foot in Europe within the last decade. They found and arrested someone whose finger was a real match...Mayfield was released. The government eventually paid him $2 million in damages and, in a rare act of contrition, issued a formal apology to him and his family. A federal judge in Oregon also found that the Patriot Act’s authorization of secret searches against American citizens was unconstitutional — a ruling that was reversed on a technicality by a higher court.

That was nearly a decade ago. “But you never quite get over these things,” Mayfield said. “It was a harrowing ordeal. It was terrifying.” He and his daughter are working on a book about what happened. Sharia is also going to law school. “I want to do civil liberties,” she said.

So there we are. It’s just one story. But I suspect the national willingness to give government a blank check on national security matters comes to a screeching halt at about the point where the agents tiptoe into the daughter’s bedroom.