Bad fingerprint match illustrates post-9-11 flaws, critics say

WASHINGTON -- Another arrest in a high-profile crime, another pullback by the FBI.

The release of Oregon lawyer Brandon Mayfield after the FBI acknowledged it had mistakenly matched his fingerprint to one found near the scene of the deadly Madrid train bombings is the latest illustration of what critics say is a flawed U.S. anti-terror policy that threatens Americans' civil liberties and privacy.

"It underscores the dangers of this kind of policy of arrest first, ask questions later," David Cole, a Georgetown University law professor and critic of post-Sept. 11, 2001, law enforcement tactics, said Tuesday.

The FBI made a rare apology to Mayfield on Monday night, after he was cleared of any connection to the March 11 bombings that killed 191 people and injured more than 2,000. FBI officials said Tuesday they would have no further comment on the case.

Now, the agency is reviewing how it handles fingerprints, especially in cases such as the one involving Mayfield, where forensic experts must rely on digital images, rather than original evidence.

For the review, an international panel of experts will examine what happened in the Mayfield case.

This is not the first time the FBI has fingered an innocent person, to its embarrassment. Richard Jewell was wrongly accused in the 1996 bombing at the Atlanta Olympics. And nuclear scientist Wen Ho Lee was freed in 2000 after a criminal case alleging he stole secrets from the Los Alamos Laboratory in New Mexico fell apart. President Clinton apologized to Lee for that foul-up.

To critics of government anti-terrorism tactics, Mayfield's arrest is an example of a problem that extends beyond flawed fingerprint examination techniques.

They say it shows that the government is far too willing to detain people, sometimes for weeks or longer, with little criminal evidence.

Mayfield was taken into custody on a material witness warrant, a law that has been on the books for decades to allow prosecutors, with a judge's approval, to detain people so they can testify when there is a reasonable fear they might flee.

Since the Sept. 11, 2001, attacks, the Justice Department has used that authority more than 50 times to detain people linked to terrorism investigations, authorities said. In some cases, criminal charges are filed later; in others, the individual is simply released -- sometimes without ever having to testify.

"It's an easy tool for the government to use to detain someone when they don't have evidence of a crime," said Anjana Malhotra, an attorney with the American Civil Liberties Union and Human Rights Watch studying post-Sept. 11 use of material witness power.

The Mayfield case, Malhotra said, "is a classic example of the government's misuse of the material witness warrant."

Justice Department and FBI officials reject that characterization, and contend that they followed long-established procedure every step of the way in the Mayfield case. Court papers filed by U.S. Attorney Karin Immergut of Oregon said the warrant was sought because the government feared leaks to the media would disrupt the investigation, and because of "the potential loss of critical evidence."

Attorney General John Ashcroft has said repeatedly the Justice Department will use every available legal tool to prevent future terrorist attacks. In practice, that often means arrests or detentions of suspect individuals on lesser charges, such as immigration violations, instead of waiting for a bigger case after a terror attack.

When Mayfield was arrested May 6, the government noted he had attended a local mosque and advertised his law practice in a publication owned by a man with terrorism ties, according to court records. Mayfield had also represented in a child custody case Jeffrey Battle, who pleaded guilty last year to conspiring to help al-Qaida and the Taliban fight U.S. forces in Afghanistan.

Ultimately, no charges were brought. The FBI said the Spanish bombing fingerprint linked to Mayfield "was based on an image of substandard quality" that several analysts -- even one brought in by Mayfield -- had nonetheless previously confirmed as belonging to him.

It wasn't until after the FBI sent two fingerprint examiners to Madrid to examine the physical evidence in person that it became clear the print was not a match to Mayfield.

Cole said that such an incident could be prevented from happening again if Congress would update the material witness law to require that testimony be given as soon as possible. Judges also should be more skeptical when government prosecutors seek the warrants, he said.

"If you explicitly invoke the force of the law out of fear of that someone might engage in some activity in the future, you are going to harm many innocent people," Cole said.