Preempt terrorists

The suspect argued that taking his religion into account was illegitimate, and the court agreed with him.

October 8, 2007 20:49
3 minute read.
Preempt terrorists

9\11 224 88. (photo credit: Courtesy)


Dear Reader,
As you can imagine, more people are reading The Jerusalem Post than ever before. Nevertheless, traditional business models are no longer sustainable and high-quality publications, like ours, are being forced to look for new ways to keep going. Unlike many other news organizations, we have not put up a paywall. We want to keep our journalism open and accessible and be able to keep providing you with news and analysis from the frontlines of Israel, the Middle East and the Jewish World.

As one of our loyal readers, we ask you to be our partner.

For $5 a month you will receive access to the following:

  • A user experience almost completely free of ads
  • Access to our Premium Section
  • Content from the award-winning Jerusalem Report and our monthly magazine to learn Hebrew - Ivrit
  • A brand new ePaper featuring the daily newspaper as it appears in print in Israel

Help us grow and continue telling Israel’s story to the world.

Thank you,

Ronit Hasin-Hochman, CEO, Jerusalem Post Group
Yaakov Katz, Editor-in-Chief


'Everything" did not change on 9/11, as some expected, but one thing certainly did: the US government's willingness to preempt enemies before they act. This new policy has outraged so many, it may be discontinued. In foreign affairs, preemption replaced the long-established policy of deterrence. A series of speeches established the new policy, culminating in George W. Bush's June 2002 declaration that "our security will require all Americans to be forward-looking and resolute, to be ready for preemptive action when necessary to defend our liberty and to defend our lives." Nine months later, preemption justified the invasion of Iraq before Iraqis had attacked the United States, to the fury of many. In domestic US affairs too, preemption has prompted great consternation. In keeping with the Fourth Amendment to the Constitution ("The right of the people to be secure… against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause"), law enforcement historically has held off arresting thieves until they actually committed crimes. But the 1978 Foreign Intelligence Surveillance Act (FISA), beefed up by the 2001 USA PATRIOT Act, makes it easier to stop terrorists before they act. If there is probable cause that someone is acting as an agent of a foreign terrorist group, without there also being probable cause that he has planned or committed crimes, it allows surveillance - and the resulting evidence. Last week, a US district court judge in Oregon, Ann Aiken, used the case of one Brandon Mayfield, an Oregon attorney who was wrongly accused of terrorism, as her vehicle to declare unconstitutional this key provision of the USA PATRIOT Act. If upheld, her decision to reject prior precedent upholding the act has potentially far-reaching and harmful consequences for counterterrorism. MAYFIELD'S CASE, however, shows the weakness in Aiken's argument: Following the March 11, 2004, bombings in Madrid that killed 191 people and injured 2,000, the Federal Bureau of Investigation tested a set of fingerprints from the Spanish crime scene and generated 20 prints from its system that most closely matched. Mayfield alleges that FBI examiners ran background checks and learned of his conversion to Islam, and that this knowledge biased their examination of his fingerprints, leading to the search of his house, followed by his arrest. He spent two weeks in prison, until the Spanish authorities definitively attributed those fingerprints to someone else. Mayfield argues that taking his religion into account was illegitimate, and the court agreed with him. However, circumstantial evidence strongly suggested Mayfield's connection to the Madrid bombing, as I have shown in a prior column and Web log entry. That evidence included Mayfield having:

  • prayed in the same mosque as did several individuals who pleaded guilty of conspiring to help the Taliban;
  • helped organize a branch of the Muslim Student Association, a Wahhabi organization, at Washburn University;
  • represented Jeffrey Leon Battle - who subsequently was sentenced to 18 years in prison after pleading guilty to conspiracy to levy war against America - pro bono in a custody dispute;
  • advertised his law practice with Farid Adlouni, someone "directly linked in business dealings" with Wadih El Hage, Osama bin Laden's former personal secretary, later convicted of conspiring to murder American citizens.
  • written a letter supporting the Taliban. IN ADDITION, Mayfield's house contained virulently anti-Semitic articles, his landline telephone was used to contact Perouz Sedaghaty (a.k.a. Pete Seda), a suspected terrorism-funder, and someone used his home computer to research travel to Madrid, rental housing in Spain, and a Web site connected to the Spanish national passenger rail system, target of the Madrid bombings. This evidence, the US Attorney in Oregon, Karin Immergut, rightly concluded, "demonstrates that the government and its agents were acting in good faith" when they imprisoned Mayfield. Also, the Department of Justice inspector general found no indication "that the FBI Laboratory had knowledge of Mayfield's religion" while analyzing his fingerprints. But Judge Aiken, a Clinton appointee, exploited law enforcement's misstep to gut the USA PATRIOT Act. That act provides some crucial updating; the Founding Fathers could not anticipate that US citizens one day would support al-Qaida, while Congress wrote FISA to counter Soviet espionage, not Hizbullah cells. Should Aiken's view prevail (which it might well not), terrorism will more often have to occur before its perpetrators may be arrested. Practically speaking, we will have returned to 9/10. The writer is director of the Middle East Forum.

    Join Jerusalem Post Premium Plus now for just $5 and upgrade your experience with an ads-free website and exclusive content. Click here>>

  • Related Content

    Boys leap into a public swimming pool in Baghdad,
    May 20, 2019
    Teach your child to swim