Spence: $2M settlement underscores loss of freedom
Jackson attorney battles FBI, big government, Patriot Act.
By Angus M. Thuermer Jr.
December 6, 2006
Fresh from winning a $2 million settlement in a suit against the FBI for wrongly tying an Oregon lawyer to the Madrid bombing case, Jackson Hole attorney Gerry Spence warned Tuesday of growing fascism in America.
Spence was the lead attorney in a case brought by Oregon lawyer Brandon Mayfield against the FBI for his arrest in the case that saw 191 people killed in Spain. The FBI began investigating Mayfield after computers said his fingerprints came close to matching a print found on a bag containing explosive detonators connected to the March 11, 2004, bombing.
Mayfield announced the settlement last week in Portland, Ore., but the flamboyant Spence has been missing from many of the news reports of the incident. He spoke in a telephone interview from his home in Jackson Hole, cautioning against the government and corporations consolidating increasing power.
“It’s a very frightening time in our country,” said Spence, who has made a career championing the cases of the common man and underdogs. “What happens is that the corporate king, or the government-corporate king, the two combined, [are] leading us into fascism.”
As part of the settlement, Spence secured an apology from the FBI and will be able to continue a case challenging the Patriot Act. He said, however, that the mainstream media is shunning his warnings and that even a Congressional committee dis-invited him from testifying about the Patriot Act once majority members learned what he would say.
Spence said the Mayfield story begins when the FBI received a copy of the print through Interpol, the international police agency, and used a computer to compare it to those it had on file. Among the prints in its database were Mayfield’s, on file since his service in the military.
“Out popped 20 potential matches that now need to be viewed individually by the expert,” Spence said of the computer’s work. Mayfield’s was the fourth-best match, but he shot to the top of the list, Spence said.
“What we have here is a Muslim card that was played,” Spence said.
He characterized Mayfield as “a Kansas farm boy who married an Egyptian woman.” Mayfield converted to Islam.
“In their papers for the arrest of Mayfield, they allege he had represented a known Muslim terrorist,” Spence said. “In fact, his representation was only on a child custody matter. They arrested him primarily because he was a Muslim.”
Before the arrest, however, the FBI investigated the lawyer secretly.
“They got a secret warrant and secretly came to Mayfield’s house and broke in like common burglars,” Spence said.
Those famous FBI shoes were the giveaway.
“In this case they didn’t realize in the Mayfield family – they take their shoes off before they go into the house,” Spence said. “There were shoe prints in the carpet. Locks were locked that weren’t usually.
“They knew they were invaded but they didn’t know by whom,” Spence said of the Mayfield family, which includes three children.
“Under the Patriot Act they have the power to install secret microphones and to bug the telephones and to put microphones under the kitchen table and under the bed,” Spence said. “One is never given the opportunity to determine what they have done, what they have taken and where they have disseminated this information.
“They went into his papers, copied his computers, took his DNA,” Spence said. On one occasion, Mayfield’s son was terrified when he saw a stranger trying to break into his home, Spence said.
The FBI also suspected Mayfield because he went to a mosque and advertised in a Muslim Yellow Pages directory. Ford and GM use the same advertising venue, Spence said.
“And they claimed he must have had false papers because they couldn’t find any evidence he had left the U.S.” to take part in the bombings, Spence said. “If you have stayed at home and minded your own business, you’re also a criminal because you have fooled the FBI.”
FBI denies role of religion
The FBI has rejected allegations religion played a role in the investigation. In a statement issued earlier this year, the agency noted that it had cooperated with the Justice Department’s Office of the Inspector General in a probe into the botched investigation.
“The OIG report concluded that religion played no improper role in the identification or investigation of Mr. Mayfield,” the FBI said.
But once the investigation was under way, religion did weigh in, according to the probe.
“FBI fingerprint experts probably were more resistant to re-examining their conclusion that Brandon Mayfield’s fingerprint matched one on a bag containing detonators like those used in the attacks in Spain because of his religion, Inspector General Glenn Fine said in the executive summary of a 273-page report that otherwise remains classified,” the Associated Press reported earlier this year.
Spence said that when it came time to arrest the lawyer, the media got a tip.
“The press was at hand when the FBI came in to arrest him, including a reporter from a national magazine,” Spence said. “Which means that they had notice of the arrest and of the case and what the government was going to do some time prior to the arrest. And it was leaked by the government to the press so the press could be on hand, which may be in violation of federal criminal laws that deal with privacy.”
Spence said the settlement precludes him from pursuing that potential violation. Being jailed hurt Mayfield, he said.
“He did suffer some injury – some physical injury being handcuffed and shoved in cells,” Spence said. “It was an experience that would be a nightmare for you and me as it was for him.”
Mayfield spent approximately 11 days in jail.
Spence said it also was upsetting that the investigation violated attorney-client privilege.
“They looked at his client’s papers,” Spence said. “This is a horrible thing.
“If we give the attorney information, it is secret,” he said. “It can’t be obtained by the court or anybody else. It’s as sacred as the parishioner-priest privilege.”
Spence said arrogance of the FBI was key to its shortcomings.
“The thing that makes this thing so bad, so very bad, is that the FBI was instructed by the Spanish police that they had made a mistake – even before they arrested Mayfield – and that this was not Mayfield’s fingerprint,” he said. “When you talk to the infallible FBI and tell them they’ve made a mistake – that’s heresy.”
Spence said the FBI flew a crew to Spain to convince investigators there that they were wrong, the FBI was right. The Europeans would not budge.
The FBI characterized the excursion differently, saying in a statement that it sent two fingerprint examiners to Madrid to compare an image of the fingerprint to the original in possession of Spanish authorities.
The incident is troubling because the charge Mayfield potentially faced carried the death penalty, Spence said.
“Consider what would have happened if the Spanish National Police had not remained solid in their position,” Spence said. “You then go into court with the average jury who has been told by the FBI it doesn’t make mistakes and that fingerprints are an absolute science.”
He criticized the FBI culture, and prosecutors in general. “You have people in the organization, like in any government prosecutor’s office, who want to be able to put the big trophy on the wall and to be able to say, ‘I solved the train in Spain case,’” Spence said.
The FBI contested that its agents were power hungry. “The OIG also found no evidence of misconduct on the part of any FBI employees involved in this investigation,” the agency said in a statement.
The FBI’s most recent apology, published on Washingtonpost.com, said the agency was sorry “for the suffering caused by the FBI’s misidentification of Mr. Mayfield’s fingerprint and the resulting investigation of Mr. Mayfield, including his arrest as a material witness in connection with the 2004 Madrid train bombings and the execution of search warrants and other court orders in the Mayfield home and in Mr. Mayfield’s law office.
“The United States acknowledges that the investigation and arrest were deeply upsetting to Mr. Mayfield, to Mrs. Mayfield, and to their three young children, and the United States regrets that it mistakenly linked Mr. Mayfield to this terrorist attack,” the statement said. “The FBI has implemented a number of measures in an effort to ensure that what happened to Mr. Mayfield and the Mayfield family does not happen again.”
Spence said the issue goes beyond a botched investigation or the misidentification of fingerprints. He said those in power are abusing events to gain more authority.
“Fear is a powerful motivation,” Spence said. “Nobody has been better of making us afraid, of terrorizing us, than the power structure. By terrorizing us they can pass such acts as the Patriot Act.”
The FBI said the act was not misused.
“The OIG report concludes that there was no evidence of misuse of the Patriot Act,” the FBI said in a statement. “The report finds, ‘contrary to public speculation,’ the FBI did not use certain provisions of the Patriot Act and that the Act did not affect the scope of the FBI’s use of FISA surveillance or searches. Instead, the OIG report found that the effect of the Patriot Act on this investigation was to enable the FBI to share lawful information with other members of the law enforcement and intelligence communities.”
Spence said the act is undemocratic and that he was stifled when asked to testify to Congress about it.
“The sad part of it is the American citizen doesn’t know, has no idea, what this Patriot Act permits the government to do,” Spence said. “And so when the Patriot Act came up for renewal, a minority in Congress, then the Democrats, [U.S. Rep. John] Conyers asked me to come testify about the Mayfield case so the public could have some idea of what’s going on.
“He says, ‘You have to write up a statement – would you submit it and then we’ll have you testify?’” Spence said about Conyers’ request. “So I sent the statement in.
“The day before I was to appear I got a call from the lawyer representing the minority,” Spence said. “‘I’m sorry, Mr. Spence, but the Republican majority has read what you are going to testify to,” the lawyer told him.
The message from Republicans was: “If you testify, all communication between us [Republicans and Democrats] is forever lost – we will never cooperate with you,” Spence said.
“When I got that response I prepared a press release and sent it out to every major news force in the country,” Spence said. “There was not one that picked that news story up.”
Spence said the loss of rights in this country inspired him to write his latest book, Bloodthirsty Bitches and Pious Pimps of Power. He said he can’t get on a talk show to promote it.
“And so we have a very precarious condition which can lead us into what I call the Fourth Reich,” Spence said. Mussolini predicted the Fourth Reich would occur when “government and corporations became indistinguishable.”
“That’s what we really have today,” he said. “Because we are afraid, we are angry. The average person feels helpless – ‘What can I do?’”
“Freedom,” Spence said, “requires a little bit of danger. You have to agree to a little bit of danger to be free.”