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Spain and U.S. at Odds on Mistaken Terror Arrest of Brandon Mayfield

Two weeks after United States authorities cleared a Portland-area lawyer of any connection to the deadly terrorist bombing in Madrid, high-level Spanish law enforcement officials who were also involved in the investigation are challenging key aspects of the United States' version of events in the case, touching off a muddy dispute between the two allies and painting a portrait of F.B.I. officials who repeatedly rejected evidence that they had the wrong man.
Brandon Mayfield points to his cell
Brandon Mayfield points to his cell
Spain and U.S. at Odds on Mistaken Terror Arrest
By SARAH KERSHAW
June 5, 2004
This article was reported by Sarah Kershaw, Eric Lichtblau, Dale Fuchs and
Lowell Bergman, and was written by Ms. Kershaw.

PORTLAND, Ore., June 3 - Two weeks after United States authorities cleared a
Portland-area lawyer of any connection to the deadly terrorist bombing in
Madrid, high-level Spanish law enforcement officials who were also involved
in the investigation are challenging key aspects of the United States'
version of events in the case, touching off a muddy dispute between the two
allies and painting a portrait of F.B.I. officials who repeatedly rejected
evidence that they had the wrong man.

Much of the disagreement between the two countries continues to center on
the fingerprints lifted from a blue plastic bag discovered near the scene of
the March 11 bombing, which killed 191 people and left 2,000 injured in the
deadliest terrorist attack in Europe since World War II. F.B.I. officials
once maintained the prints matched those of the American lawyer, Brandon
Mayfield, who was jailed for two weeks, and the F.B.I. at one point told
federal prosecutors that Spanish officials were "satisfied" with their
conclusion.

But in interviews this week, Spanish officials vehemently denied ever
backing up that assessment, saying they had told American law enforcement
officials from the start, after their own tests, that the match was
negative. The Spanish officials said their American counterparts
relentlessly pressed their case anyway, explaining away stark proof of a
flawed link - including what the Spanish described as tell-tale forensic
signs - and seemingly refusing to accept the notion that they were mistaken.

"They had a justification for everything," said Pedro Luis Melida Lledo,
head of the fingerprint unit for the Spanish National Police, whose team
analyzed the prints in question and met with the Americans on April 21. "But
I just couldn't see it."

The Spaniards, who continued to examine the fingerprints, eventually made
their own match, to an Algerian citizen, whom they then arrested.

Carlos Corrales, a commissioner of the Spanish National Police's science
division, said he was also struck by the F.B.I.'s intense focus on Mr.
Mayfield. "It seemed as though they had something against him," Mr. Corrales
said, "and they wanted to involve us."

A senior F.B.I. official, in an interview this week, sought to smooth over
differences with the Spanish and said that the United States was solely to
blame for the faulty match. "The Spanish did not cause the misidentification
to occur," said the official, who spoke on the condition of anonymity. "It
was squarely on the shoulders of the F.B.I."

He also denied that there were any tensions between his office and Madrid,
or that American officials had applied any pressure on the Spanish to concur
with their finding about the Mayfield match. The only purpose in going to
Spain for the April 21 meeting was to explain the process the F.B.I. used in
matching the print, and "to explain our conclusions," he said.

His comments were in stark contrast to those made only last week by senior
F.B.I. officials during several closed-door briefings for Congressional
staff members looking into how the mistakes could have happened. There,
according to several Congressional aides who attended, officials strongly
suggested that the Spanish authorities were partly responsible for the
fingerprint fiasco and signaled that relations with them were strained.

"It's really coming down to a `he said, he said,' " said one aide who
attended a briefing. "They said over and over again that `we asked the
Spanish for the best possible evidence.' The clear impression was they asked
the Spanish for all this, and they didn't give it to them."

An examination of court records and transcripts as well as interviews with
Spanish and United States law enforcement officials and with Mr. Mayfield
and his lawyers reveals that the twists and turns of the case go far deeper
than problems of diplomacy. In pursuing what proved to be a flawed case
against Mr. Mayfield, the F.B.I. was also beset by internal dissension
between officials in Portland and Washington, a language barrier with the
Spanish, and a fingerprint examination that the bureau now concedes was
flawed from the start.

The result was what William Baker, former assistant director of the F.B.I.,
describes as "a major black eye" comparable to the wrongful arrest of
Richard Jewell in the 1996 Atlanta Olympics bombings. The F.B.I. "can't
afford too many more of these," Mr. Baker said. "You start losing your
credibility, and then judges start losing their confidence."

As far as who is right in the dispute, "clearly Spain holds the high card
here," Mr. Baker said.

Amid all of the turmoil was the frightening experience of a bewildered
lawyer from Portland, who grew more and more panicked that his fate was
being sealed and there was nothing he could do about it. "That's not my
fingerprint, your honor," a baffled Mr. Mayfield said at one point to the
judge during a hearing after his arrest, pleading not to be taken to jail.
"I have never seen this bag. I have no awareness about that bag."

The bizarre tale began days after the attack, when the F.B.I., after
receiving several fingerprint images from Spain, said it had found a match
to the digital image of a print from the blue bag, which held seven copper
detonators like those used on the train bombs. Mr. Mayfield's prints were in
the F.B.I.'s central database of more than 44 million prints because they
had been taken when he joined the military, where he served for eight years
before being honorably discharged as a second lieutenant.

The F.B.I. officials concluded around March 20 that it was a "100 percent
match," to Mr. Mayfield, according to court records and prosecutors in
Portland. They informed their Spanish counterparts on April 2 and included
Mr. Mayfield's prints in a letter to them.

But after conducting their own tests, Spanish law enforcement officials said
they reported back to the F.B.I. in an April 13 memo that the match was
"conclusively negative." Yet for for five weeks, F.B.I. officials insisted
their analysis was correct.

In Portland, meanwhile, investigators were quickly building their case
against Mr. Mayfield, 37, a Muslim convert, and arrested him on May 6 on a
material witness warrant, a technique that civil liberties advocates charge
that the Bush administration has abused in an effort to fight terrorism.
Despite never being charged with an actual crime, court transcripts and
interviews with Mr. Mayfield show he was told that he was being investigated
in connection with crimes punishable by death and jailed for 14 days. On May
24, after the Spaniards had linked that same print from the plastic bag to
the Algerian national, Mr. Mayfield's case was thrown out. The F.B.I. issued
him a highly unusual official apology, and his ordeal became a stunning
embarrassment to the United States government.

In interviews this week, Mr. Corrales, Mr. Melida and other Spanish law
enforcement officials suggested that the entire episode could have been
avoided. Mr. Melida was among 10 Spanish police officials who met on April
21 in Madrid with a fingerprint examiner from the F.B.I. lab at Quantico,
Va., - one of three F.B.I. examiners who confirmed the Mayfield match - and
other American officials to discuss their differing views on the
fingerprint.

Mr. Baker said the F.B.I. may have erred by sending examiners to Spain to
try to iron out wrinkles in the case in April and May, rather than sending
higher-level officials to signal that the case was a high priority for the
United States. The F.B.I. official who spoke on condition of anonymity said
the examiner who met with the Spaniards was one of the F.B.I.'s best
forensics people, but he acknowledged that the examiner did not speak
Spanish. Other Americans at the meeting did, however.

At the meeting, the F.B.I. presented the Spanish with a three-page document
detailing their findings, according to Mr. Melida.

F.B.I. officials told Congressional members in the briefings last week that
they came up with the match after working off a "second-generation" digital
print - meaning a copy of a copy. But they gave a somewhat different
explanation in interviews this week, saying they are now uncertain what
generation the digital print represented. But the F.B.I. official who spoke
to The New York Times on condition of anonymity added that the real issue
was the quality of the latent print that the Spanish originally took from
the blue bag.

The determination by an F.B.I. examiner that the print was useable was hasty
and erroneous, the official said, and set the agency off in the wrong
direction and corrupted the rest of the process. (In an article on May 8 in
The Times, one Spanish official erroneously said that authorities there
thought the prints matched.)

At the April 21 meeting, the F.B.I. presented the Spanish with a three-page
document detailing their position that the prints from the bag belonged to
Mr. Mayfield, according to Mr. Melida, the head of the fingerprint unit for
the Spanish National Police, whose team analyzed the prints in question. The
Spanish law enforcement officials kept pointing out discrepancies between
their analysis and that of the F.B.I., but this did not seem to sink in with
the Americans, Mr. Melida said.

The Spaniards had said the two prints had seven points, or specific aspects,
in common, while the Americans insisted the prints had 15. F.B.I. officials
would not discuss the discrepancies.

Mr. Melida said an examination of the two prints showed that the arcs on the
lower part of the print curved downward in Mr. Mayfield's print but upward
in the print from the bag. In addition, the two prints did not have the same
number of concentric rings, or crests, he said. "You're trying to match a
woman's face to a picture," he said. But you see that woman has a mole, and
the face in the picture doesn't. Well, maybe it's covered up with make-up,
you say. O.K., but the woman has straight hair and it's curly in the
picture. Maybe the woman in the picture had a permanent?"

The F.B.I., who up until then had seen only a copy of the print, had an
opportunity at the April 21 meeting to examine the plastic bag, but did not
ask to do so, Mr. Melida said. The F.B.I. official who spoke to The Times
refused to say why the agency did not ask the Spanish for access to the
original prints or a higher-quality image during that meeting. They waited
until a month later, after the F.B.I. received word of the match to the
Algerian, to ask to see the bag. But it was too late. By then, the original
prints on the bag had been destroyed through testing and examination,
according to both Spanish and American authorities.

At the end of the meeting, Mr. Melida said, the Spaniards said they would
continue to study the fingerprint matter, but they "refused to validate" the
F.B.I.'s conclusions and maintained that the match was negative.

Asked about Spain's determination that the Mayfield match was a negative,
the F.B.I. official told The Times: "We didn't know what it meant." F.B.I.
officials were uncertain how or why the Spanish had come to that conclusion,
and the F.B.I. was confident of its own findings, he said.

And so on May 6, in an affidavit in support of Mr. Mayfield's arrest
warrant, Portland prosecutors, who had been briefed by the F.B.I. on the
Madrid meeting, stated that the Spaniards would continue to analyze the
prints but that they "felt satisfied" with the F.B.I.'s conclusions.

The United States attorney in Portland, Karin J. Immergut, said in an
interview that she was concerned about the questions raised by Spanish
authorities. But she said F.B.I. officials assured her that the analysis
conducted at the lab in Quantico was accurate and that any doubts raised by
the Spaniards had been resolved.

"In terms of the doubts," Ms. Immergut said, "the issue was raised by the
Spanish but it was quickly dispelled."

Her office had been investigating Mr. Mayfield since March 20, when the
F.B.I. notified Portland prosecutors of the fingerprint match. Building
their case for his arrest on a material witness warrant, they came up with a
list of Mr. Mayfield's potential ties to Muslim terrorists, which they
included in the affidavit they presented to the federal judge who ordered
his arrest and detention.

They included that Mr. Mayfield had represented a Portland terrorism
defendant in a custody case; that records showed a "telephonic contact" on
Sept. 11, 2002, between his home and a phone number assigned to Pete Seda,
the director of a local Islamic charity, who is on a federal terrorism watch
list; that his law firm was advertised in a "Muslim yellow page directory,"
which was produced by a man who had business dealings with Osama bin Laden's
former personal secretary; and that he was seen driving from his home to the
Bilal mosque, his regular place of worship.

The document also said while no travel records were found for Mr. Mayfield,
"It is believed that Mayfield may have traveled under a false or fictitious
name."

Mr. Mayfield had never been to Spain, he said, and the last time he was out
of the country was more than 10 years ago, when he was posted in Germany
with the Army and, separately, visited Egypt, his wife's native country. He
said he had left Portland only twice in the last few years, once to take his
children to a theme park in Las Vegas and once to see brother, who was dying
of leukemia, in Kansas.

"Being a sole practitioner, it's hard to stay afloat and it's not like I had
time to be traipsing around the world," he said in an interview. "If they
only knew."

Meanwhile, an F.B.I. official said that Robert Jordan, the F.B.I. special
agent in charge in Portland, was upset by the F.B.I. headquarter's handling
of the case and that Mr. Jordan had been kept out of the loop in key
decision making matters, particularly after the case fell apart. When Mr.
Jordan called officials in Washington the day the case was thrown out, the
official said, he left a message but was excluded from high-level
conversations about the mistake.

Spanish officials said they were not more assertive with the F.B.I. because
they did not want to openly contradict their close ally in the war on
terror, although they continued privately to express their doubts.

"The Spanish officers told them with all the affection in the world that it
wasn't him," said a Spanish police official who spoke on condition of
anonymity. "We never wanted to simply come out and say the F.B.I. made a
mistake. We tried to be diplomatic, not to make them look bad, so we just
said the case is still open."

Between the April 21 meeting and May 11, six days after Mr. Mayfield's
arrest, the F.B.I. "called us constantly," Mr. Corrales said. They kept
pressing us."

On May 6, Mr. Mayfield heard a curious knock on the door of his law office,
on the first floor of a beige office building in Beaverton, a Portland
suburb. It was about 10 in the morning and Mr. Mayfield, who had opened his
still-fledgling solo immigration and family law practice a few years ago,
was not expecting anyone.

At the door were two agents with the F.B.I., a pair Mr. Mayfield described
in an interview as "good cop, bad cop," "tall one, short one," a burly male
agent and a diminutive female agent. Reading from a list on the search
warrant, which was contained in court records unsealed last week, the agents
told Mr. Mayfield they were searching for, among other things, "explosives,
blasting agents and detonators."

The court records show that the agents confiscated a large number of items
from the office, including computer disks, bank statements, yellow Post-it
Notes and confidential client files. Meanwhile, agents were confiscating
things from the Mayfield's home, including a .22-caliber handgun and
.22-caliber rifle, his Koran, and what was described in the search warrant
return report as "miscellaneous Spanish documents," which turned out to be
Spanish homework belonging to Mr. Mayfield's children, family members said.

In the office that morning, Mr. Mayfield, not yet understanding the gravity
of the situation, was almost dismissive of the agents. He recalled telling
the agents, "If you have questions, put them in writing, I'll review them
and I might get back to you."

This did not go over well, Mr. Mayfield recalled, and soon enough, he was
frisked and handcuffed and marched out to a Ford Explorer that would take
him to the federal courthouse in downtown Portland. On the way to the
courthouse, one of the agents, "the bad cop," said something that Mr.
Mayfield found particularly scary, he recalled.

"Brandon think long and hard," he quoted the agent as telling him. "You
remember how the Muslim brothers stood up for Mike Hawash," one of the
Muslim defendants in the terrorism case here known as the "Portland Seven,"
who pleaded guilty to last year to a charge of aiding the Taliban. "Well,
they are not going to be there for you."

F.B.I. officials in Portland, including Mr. Jordan, declined to be
interviewed about the case. Many Muslim leaders say they suspect the F.B.I.
zeroed in on Mr. Mayfield because he was a Muslim who had connections to the
Portland Seven and who visited a mosque that was under suspicion. But F.B.I.
officials emphasized that the examiners who made the initial match between
the Madrid print and Mr. Mayfield did not know his name, much less his
religion.

They said that all they had was the print. The faulty match was another
setback for the F.B.I. laboratory, which is considered by many to be the
premier forensic crime laboratory in the country. But both the F.B.I.
laboratory and the fingerprinting technique have endured stinging criticism
in recent years.

Critics say the F.B.I. has resisted using uniform standards for fingerprint
identification. F.B.I. officials say that human experience - rather than
rigid and somewhat artificial indicators - is the best way to determine a
fingerprint match, but critics say the F.B.I. should insist that its
examiners establish a set number of points of similarity on a print before
they can declare a match.

A Senate aide who also attended a Congressional briefing said there was
great concern about the impact the Mayfield mistake would have. "This is
going to kill prosecutors for years every time they introduce a fingerprint
ID by the F.B.I.," the aide said. "The defense will be saying `is this a 100
percent match like the Mayfield case?'"

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